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Myers v. Barringer12/18/1990
In this appeal, plaintiffs, Ronnie and Shelby Myers ("the Myers"), seek to overturn the order of summary judgment granted to defendant Wake Psychiatric Hospital, Inc. ("Holly Hill"). The Myers also seek to overturn the judgment dismissing their remaining claims against the non-Hospital defendants. For the reasons which follow, we affirm the decisions of the trial judge.
I
Ronnie Myers ("Mr. Myers") brought this action for medical malpractice against Thad J. Barringer ("Dr. Barringer"), Thad J. Barringer, Jr. ("Dr. Barringer, Jr."), Jafar M. Shick ("Shick"), Wake Anesthesiology Associates, Inc. ("Anesthesiology Associates"), and Holly Hill.
Mr. Myers was a patient at Holly Hill undergoing treatment for depression and migraine headaches. Mr. Myers was a patient of Dr. Barringer prior to his hospitalization; Dr. Barringer was treating him for depression, for which he recommended electroconvulsive therapy treatments ("ECT"). The complaint alleges that he misdiagnosed Mr. Myers' condition and negligently failed to recommend effective medication treatment, but instead recommended ECT.
Dr. Barringer, Jr., administered the eight ECT treatments Mr. Myers received. The complaint alleges that he was negligent in administering the ECT treatments and that the proximate result of that conduct was fractures in both of Mr. Myers' hips which ultimately necessitated replacement of both hips. The complaint also alleges that Dr. Barringer, Jr. was also negligent in failing to adequately diagnose Mr. Myers' condition, to recommend alternative medication treatment, and to properly advise and inform Mr. Myers of the risk and side effects associated with ECT, particularly the risk of seizures and muscle contractions which can cause fractures to the body.
Shick is an employee of Anesthesiology Associates, whose personnel acted as anesthesiologists during each of the eight ECT treatments Mr. Myers received. Shick was the attending anesthesiologist during the third, fourth and fifth ECT treatments. The complaint alleges that Shick and Anesthesiology Associates improperly advised Mr. Myers of the side effects associated with ECT, and that they took improper precautions, including failure to administer sufficient dosages of proper medications to control Mr. Myers' muscle contractions and seizures while he underwent ECT treatments.
As to Holly Hill, the complaint alleges that the hospital, through its employees, failed to document and insure that the physicians treating Mr. Myers were aware of his complaints of pain and soreness, particularly his complaints of pain and soreness in his hips and legs which he alleges he made after each ECT treatment. The complaint further alleges that Holly Hill failed to properly advise Mr. Myers of the risks of seizures and muscle contractions associated with ECT treatments.
Shelby Myers ("Mrs. Myers") brought a claim against the same defendants for loss of consortium. Holly Hill filed a motion for summary judgment which was granted. The Myers filed notice of appeal to the order granting summary judgment for Holly Hill. They were advised that trial would be held on the remaining claims in ten days and the trial judge offered them the opportunity to seek a writ of supersedeas, which they did not pursue. On the day of trial, the Myers refused to proceed and the trial judge entered an order dismissing their remaining claims with prejudice. From those orders the Myers appeal.
This appeal presents three issues:
(1) Whether the appeal of the summary judgment as to one but not all defendants is premature;
(2) Whether notice of appeal stayed further action by the trial judge as
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