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Johnson v. Amethyst Corp.11/7/1995
e carrier, "to monitor the pending lawsuit with the understanding that defendant Bartolotta's whereabouts were unknown."
We find no merit in the contention that because counsel has been employed by St. Paul Fire and Marine Insurance Company, he therefore represents Mr. Bartolotta. Indeed, St. Paul Fire and Marine Insurance Company is not a party to this action. Mr. Bartolotta was sued in his individual capacity and did not consent to Attorney Kurdys' representation of him. The record indicates that no contact has taken place between Attorney Kurdys and Mr. Bartolotta, and thus, counsel's representation has been undertaken without Mr. Bartolotta's knowledge. As such, the two required factors -- authority of the agent and control by the principal -cannot be shown to exist where no contact has been made whatsoever between Attorney Kurdys and Mr. Bartolotta.
We find that Attorney Kurdys had no authority to act on behalf of Mr. Bartolotta. It follows that the trial court erred by setting aside the entry of default based on the motion made by Attorney Kurdys.
II.
The plaintiff also contends that the trial court committed prejudicial error by refusing to submit plaintiff's claim of medical malpractice against defendant Bartolotta. We agree.
Our Supreme Court has held that where a trial court refuses to instruct the jury with respect to an issue, its jury charge amounts to an implied directed verdict on that issue. Akzona, Inc. v. Southern Ry. Co., 314 N.C. 488, 495, 334 S.E.2d 759, 763 (1985). In order to withstand a motion for a directed verdict, the evidence must be viewed in the light most favorable to the non-moving party. Additionally, the plaintiff must offer evidence of each of the following elements in her claim for relief: (1) The standard of care; (2) breach of the standard of care; (3) proximate causation; and (4) damages. Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570 (1981).
Claims for medical malpractice in North Carolina are governed by N.C. Gen. Stat. § 90-21.12 (1993). N.C.G.S. § 90-21.12 provides that health care providers are held to the "standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action." A cause of action for medical malpractice may be initiated based upon sexual advances made by a health care professional. See MacClements v. Lafone, 104 N.C. App. 179, 184, 408 S.E.2d 878, 880-81, disc. rev. denied, 330 N.C. 613, 412 S.E.2d 87 (1991); Mazza v. Huffaker, 61 N.C. App. 170, 178, 300 S.E.2d 833, 838, disc. rev. denied, 309 N.C. 192, 305 S.E.2d 734 (1983). As such, when a plaintiff alleges that he/she has been sexually assaulted by a health care professional, a cause of action may arise from the failure of a health care provider to meet the relevant standard of care.
The evidence when viewed in a light most favorable to the non-moving party indicates as follows: Dr. Jerry Noble, a clinical psychologist, was accepted as an expert in the field of clinical psychology without objection. Dr. Noble testified that the conduct of Mr. Bartolotta violated the standard of care as it relates to clinical assistants in substance abuse hospitals in communities similar to Charlotte, North Carolina. Dr. Noble further testified that Ms. Johnson suffered severe emotional distress as a result of Mr. Bartolotta's sexual misconduct.
We find that this evidence was sufficient to withstand a directed verdict. See MacClements v. Lafone, 104 N.C. App. at 184, 408 S.E.2d at 880-81. Accordingly, the trial court erred by dismissing plaintiff's claim of
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