 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Moore v. Gaston Memorial Hospital8/16/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Joan B. Moore (plaintiff) appeals from the trial court's order dismissing her complaint against William S. Watkins, M.D. (defendant).
Defendant was licensed in North Carolina to practice internal medicine with a sub-specialty certification in gastroenterology. As part of his practice, defendant had privileges to treat and admit patients to Gaston Memorial Hospital (Gaston Memorial). Plaintiff was admitted to Gaston Memorial's Outpatient Surgery Department on 10 August 2000 for defendant to perform an endoscopic examination for treatment of a gastroenterological condition. Prior to sedation, plaintiff provided defendant with consent for defendant to perform both an endoscopic examination and a dilation procedure. The dilation procedure was to be performed if defendant felt such a procedure was necessary and justified based on the results of the endoscopic examination.
After performing the endoscopic examination, defendant determined that a dilation procedure was warranted and performed the dilation procedure on plaintiff. Plaintiff was discharged from Gaston Memorial but returned later that same day, complaining of pain in her throat. Defendant readmitted plaintiff to Gaston Memorial and determined that plaintiff's esophagus was perforated. Plaintiff remained under defendant's care at Gaston Memorial for thirty-nine days. As part of plaintiff's treatment regimen, defendant placed plaintiff on Gentamicin, an antibiotic, that was administered to plaintiff by Gaston Memorial staff. In prescribing Gentamicin, defendant indicated that the drug should be given to plaintiff "per pharmacy protocol."
Plaintiff filed a complaint against defendant and alleged that defendant negligently perforated plaintiff's esophagus and negligently administered a toxic dose of Gentamicin. For the claim that defendant negligently perforated plaintiff's esophagus, plaintiff also alleged negligence under the doctrine of res ipsa loquitur. Defendant filed a motion to dismiss on 14 May 2004, claiming that plaintiff failed to state a claim upon which relief could be granted, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). Defendant also argued that plaintiff failed to allegethat she had a Rule 9(j) expert who was qualified to testify under Rule 702 of the N.C. Rules of Evidence. See N.C. Gen. Stat. § 1A-1, Rule 9(j) (2003); N.C. Gen. Stat. § 8C-1, Rule 702 (2003). The trial court granted defendant's motion to dismiss plaintiff's complaint as to defendant in an order entered 24 June 2004. The claim against Gaston Memorial is not at issue in this appeal.
I.
Because the trial court did not dismiss the claim against Gaston Memorial, plaintiff's appeal from the trial court's order is interlocutory; therefore, we must first determine whether plaintiff's appeal is properly before this Court. "'An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.'" Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C. App. 504, 507, 593 S.E.2d 808, 810, disc. review denied, 358 N.C. 739, 603 S.E.2d 126 (2004) (quoting Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). Though otherwise untimely, interlocutory orders are immediately appealable when they affect the substantial rights of a party. Estate of Redding v. Welborn, ___ N.C. App. ___, ___, 612 S.E.2d 6
Page 1 2 3 4 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|