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Johnson v. Obstetrics3/15/1988
Plaintiffs alleged the individual physician-defendants, formerly practicing as the Ruark Clinic, P.A., negligently caused the
stillborn birth of their forty-week-old fetus. Plaintiffs sought recovery for the wrongful death of their child, for their individual emotional distress, and for certain compensatory and punitive damages. Plaintiffs specifically alleged defendants' failure to treat Mrs. Johnson's diabetic condition caused their infant to die in utero of malnutrition. The court granted defendants' motion to dismiss those claims. Although defendants' motion and the court's order are both styled under summary judgment, the record on appeal contains only plaintiffs' and defendants' unverified pleadings. However, the trial court cited its review of the pleadings, briefs and "discovery materials" in dismissing all of plaintiffs' claims. Plaintiffs appeal.
The trial court's dismissal of these claims presents the following issues: I) whether the adequacy of plaintiffs' allegations should be judged by the standards appropriate to summary judgment or instead by those standards appropriate to a judgment on the pleadings; II) where plaintiff administrator alleged defendants' negligence caused the wrongful death in utero of his forty-week-old fetus, whether (A) plaintiff stated a claim under N.C.G.S. Sec. 28A-18-2 (1984) and Supp. 1985) for (B) the wrongful death of a "viable" fetus; III) whether the trial court properly dismissed the individual claims of (A) the mother and (B) the father for negligently inflicted emotional distress arising from the fetus's death; and IV) whether plaintiffs may recover increased medical expenses, funeral expenses and all costs associated with medical care and lost wages arising throughout the mother's pregnancy.
I
Plaintiffs argue in their brief that the trial court's dismissal should be treated as a dismissal under N.C.G.S. Sec. 1A-1, Rule 12(b)(6) (1983) since "the total information available to the court at the time of the hearing was the unsworn complaint and unsworn answer." We note defendant-appellees' brief nowhere responds to plaintiffs' charge that only the pleadings were before the court. However, the record twice evidences the apparent existence of unspecified "discovery" materials: 1) the "Motion of Defendants for Summary Judgment" requested judgment based on "the pleadings, discovery and the record" and 2) the court's order granting summary judgment states the court had reviewed "the
pleadings, discovery materials and defendants' briefs . . ." (emphasis added). Since the only specific materials in the record on appeal indicate the trial court considered matters outside the pleadings, we cannot assume that the trial court limited its review to the pleadings in dismissing plaintiffs' complaint.
However, as defendants have not included any such "discovery materials" in the record, we cannot "carefully scrutinize" them to determine whether they support defendants' burden of "clearly establishing the lack of any triable issue of fact by the record properly before the court." Page v. Sloan, 281 N.C. 697, 704, 190 S.E.2d 189, 195 (1972). Absent these discovery materials in the record, we are unable to determine whether "reasonable men could reach different conclusions on the evidentiary materials offered by defendants to support their motion for summary judgment." Id. at 708, 190 S.E.2d at 195. As there is nothing in the record actually supporting defendants' motion other than their unverified pleadings, we thus cannot conclude that plaintiffs were required under Rule 56(e) to respond with any
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