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Dunkley v. Shoemate6/25/1999
On discretionary review pursuant to N.C.G.S. ยง 7A-31 of a unanimous decision of the Court of Appeals, 129 N.C. App. 255, 497 S.E.2d 713 (1998), reversing an order entered 26 July 1996 by Battle, J., in Superior Court, Orange County, denying plaintiff's motion requesting the removal of counsel for defendant Shoemate. Heard in the Supreme Court 14 January 1999.
The sole question presented in this case is whether the trial court erred in failing to remove the law firm of Patterson, Dilthey, Clay & Bryson, L.L.P., as counsel for defendant Lee H. Shoemate. Pertinent facts and circumstances in this case are as follows.
On 5 January 1989, Shoemate, representing that he had received his undergraduate degree from the University of Texas and that he was an M.D./Ph.D. candidate at Harvard Medical School expecting to graduate in August of 1989, applied for a psychiatry residency at the University of North Carolina Hospitals at Chapel Hill ("UNC"). Shoemate was interviewed for the position on 10 January 1989, and defendant Walker of UNC's Department of Psychiatry received letters of recommendation ostensibly from Alvin F. Poussaint, M.D., associate dean, Harvard Medical School and Daniel Perschonok, Ph.D., lecturer on psychology, Harvard Medical School.
UNC offered Shoemate a residency on 20 February 1989, which he accepted, and on 15 May 1989, he entered into an employment contract with UNC under which he was appointed to the hospital's house staff as a resident in psychiatry. Shoemate's residency began on 18 July 1989.
On 25 September 1989, plaintiff was admitted as a patient to UNC for treatment of psychological illnesses, including depression. When plaintiff was discharged on 10 October 1989, she was given a treatment plan that included biweekly visits with a psychiatric therapist to be assigned by UNC. Plaintiff's care was assigned to Shoemate for a period of time including 14 August 1990.
During the second year of his residency, Shoemate, who had previously been granted a training license, applied to the North Carolina Board of Medical Examiners for a full medical license. A routine attempt to verify Shoemate's credentials as part of the licensing process revealed that the American Medical Association had no file on Shoemate and that there was no record of his attending Harvard or any other medical school. On or about 1 October 1990, after his false representations were discovered, Shoemate resigned and absconded. Subsequent attempts to locate him have been futile.
In University of North Carolina v. Shoemate, 113 N.C. App. 205, 437 S.E.2d 892, disc. rev. denied, 336 N.C. 615, 447 S.E.2d 413 (1994), UNC sought a declaratory judgment against Shoemate and Ruby Staton decreeing that UNC was not obligated to provide medical malpractice coverage to Shoemate after Staton, another of Shoemate's patients at UNC, filed a civil action against Shoemate and others alleging medical negligence. In a unanimous decision, the Court of Appeals found that although Shoemate's employment contract was void ab initio, "UNC did permit Shoemate to be represented as its agent." Id. at 215, 437 S.E.2d at 898. The court held that the University of North Carolina Liability Insurance Trust Fund ("UNC-LITF") "provides coverage against personal tort liability for any person or individual whether an employee, agent or officer of UNC, working within the course and scope of [his or her] health-care functions." Id. at 212, 437 S.E.2d at 896.
UNC-LITF retained the law firm of Patterson, Dilthey, Clay & Bryson, L.L.P. ("law firm"), to defend Shoemate in this suit to the extent that the trust fund provided coverage for Shoemate's acts. Since 1991, the law firm h
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