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Stenger v. Spagnoli9/6/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Plaintiffs appeal from judgment entered 11 May 2001 dismissing their medical malpractice claims against defendants for the wrongful death of Lori B. Stenger. We reverse.
On 22 September 1998, Lori B. Stenger was admitted to Carolinas Medical Center for surgery to replace her temporo-mandibular joint. The surgery was successfully completed during the afternoon of 22 September 1998. Following the surgery, Mrs. Stenger was administered pain medications through a pump to the temporo-mandibular joint. On the morning of 24 September 1998 at 4:15 a.m., while still in the hospital, Mrs. Stenger was found unresponsive and with no blood pressure. By 5:06 a.m. Mrs. Stenger had no brain activity; she was subsequently removed from life support and died.
On 21 September 2000, Judge Shirley Fulton entered an order, pursuant to N.C. Gen. Stat. § 1A-1, Rule 9(j), extending the statute of limitations until 19 January 2001 for plaintiffs to file medical malpractice claims. In the caption of the motion and order, the following parties were named as defendants: Daniel B. Spagnoli, D.D.S., Ph.D.; Todd Edward Crowley, D.D.S.; C. Drummond,M.D.; and Harley S. Gellar, M.D. The order provided that "the . . . limitations applicable to the complainant(s)' cause of action is extended to and including [19 January 2001]."
On 19 January 2001, plaintiffs filed a complaint for medical malpractice against numerous defendants, including Southeast Pain Care, Southeast Anesthesiology Consultants, P.A., and Charlotte Mecklenburg Hospital Authority.
In March 2001, defendants Charlotte Mecklenburg Hospital Authority, d/b/a Carolinas Medical Center, and Southeast Anesthesiology Consultants, P.A., filed motions pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) to dismiss plaintiffs' claims for failure to state claims upon which relief might be granted. These defendants contended that plaintiffs' claims were barred by the expiration of the statute of limitations because the Rule 9(j) order did not identify them as party-defendants. Southeast Pain Management Services, P.L.L.C. also asserted, as a part of its March 2001 motion to dismiss, insufficiency of process pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(4), and insufficiency of service of process pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(5).
On 23 March 2001, prior to the filing of any responsive pleadings, plaintiffs filed an amended complaint. This amended complaint replaced defendant "Southeast Pain Care" with "Southeast Pain Management Services, P.L.L.C.", and, similarly, "Charlotte Mecklenburg Hospital Authority" with "The Carolinas Healthcare Foundation, Inc."
On 25 April 2001, defendants Southeast Anesthesiology Consultants, P.A. and Southeast Pain Management Services, P.L.L.C. reasserted, and sought rulings on, the March 2001 motions to dismiss discussed above. By order entered 11 May 2001, the trial court granted the Rule 12(b)(6) motions as to all of plaintiffs' claims against the following parties, on the grounds that they were barred by the statute of limitations: Charlotte-Mecklenburg Hospital Authority, a North Carolina Corporation d/b/a Carolinas Medical Center; The Carolinas Healthcare Foundation, Inc.; Southeast Pain Care, a Division of Charlotte Mecklenburg Hospital Authority; Southeast Anesthesiology Consultants, P.A.; and Southeast Pain Management Services, P.L.L.C.
On appeal, plaintiffs argue that the trial cour
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