Gregory v. Kilbride6/18/2002
s entitled to an immediate appeal based on a substantial right, he was not required to immediately appeal the trial court's denial of his summary judgment motion. See Dep't of Transp. v. Rowe, 351 N.C. 172, 176, 521 S.E.2d 707, 710 (1999) (where "a party is entitled to an interlocutory appeal based on a substantial right, that party may appeal but is not required to do so"). Thus, Dr. Kilbride was not required to immediately appeal the trial court's denial of his summary judgment motion, but he could wait for final judgment and timely appeal the interlocutory order. See Floyd and Sons, Inc. v. Cape Fear Farm Credit, 350 N.C. 47, 51, 510 S.E.2d 156, 159 (1999).
Immunity
At the time plaintiff's cause of action arose, North Carolina General Statutes provided:
No facility or any of its officials, staff, or employees, or any physician or other individual who is responsible for the examination, management, supervision, treatment, or release of a client and who follows accepted professional judgment, practice, and standards is civilly liable, personally or otherwise, for actions arising from these responsibilities or for actions of the client. This immunity is in addition to any other legal immunity from liability to which these facilities or individuals may be entitled. N.C.G.S. ยง 122C-210.1 (Supp. 1985).
This Court has interpreted section 122C-210.1 as providing immunity from liability as long as physicians' decisions are "an exercise of professional judgment." Alt v. Parker, 112 N.C. App. 307, 314, 435 S.E.2d 773, 777 (1993), cert. denied, 335 N.C. 766, 442 S.E.2d 507 (1994). This is so because in deciding what actions to take regarding a client, a facility's staff "should not be required to make each decision in the shadow of an action for damages." Youngberg v. Romeo, 457 U.S. 307, 325, 73 L. Ed. 2d 28, 43 (1982). It is not appropriate for the courts to decide "`which of several professionally acceptable choices should have been made,'" id. at 321, 73 L. Ed. 2d at 41 (citation omitted); Alt, 112 N.C. App. at 314, 435 S.E.2d at 777, and although an expert's opinion may differ from the judgment exercised by the professional, that opinion "represents only another `professionally acceptable choice,'" Alt, 112 N.C. App. at 316, 435 S.E.2d at 778. Therefore, if a decision is made by a professional, it "is presumptively valid," and "liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment." Youngberg, 457 U.S. at 323, 73 L. Ed. 2d at 42. In other words, liability can be imposed only if "the decision was `so completely out of professional bounds as to make it explicable only as an arbitrary, nonprofessional one. This standard appropriately defers to the necessarily subjective aspects of the decisional process of institutional medical professionals.'" Patten v. Nichols, 274 F.3d 829, 845 (4th Cir. 2001) (citation omitted); see also Shaw v. Strackhouse, 920 F.2d 1135, 1146 (3d Cir. 1990) (professional judgment "falls somewhere between simple negligence and intentional misconduct").
According to Dr. Kilbride's deposition testimony, he evaluated Mark consistent with his normal methods and the procedures of Broughton Hospital. In addition, Dr. Kilbride presented depositions from several experts stating their diagnosis of Mark would have been similar to Dr. Kilbride's diagnosis and in their professional opinion, they did not believe Mark met the requirements for involuntary commitment under North Carolina law. Moreover, the experts testified Dr. Kilbride's diagnosis of Mar
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