Opinion
No. COA12–418.
2012-11-20
Peggy WARD, Administrator of the Estate of Stella Watson, Plaintiff, v. BORUM HEALTHCARE, LLC, d/b/a Glenbridge Healthcare and Rehabilitation Center, Defendant.
Hendrick Kepley, PLLC, by Michael P. Kepley, for Plaintiff–Appellant. Davis & Hamrick, L.L.P., by H. Lee Davis, Jr., for Defendant–Appellee.
Appeal by Plaintiff from order entered 1 December 2011 by Judge Richard L. Doughton in Watauga County Superior Court. Heard in the Court of Appeals 25 September 2012. Hendrick Kepley, PLLC, by Michael P. Kepley, for Plaintiff–Appellant. Davis & Hamrick, L.L.P., by H. Lee Davis, Jr., for Defendant–Appellee.
BEASLEY, Judge.
Peggy Ward (Plaintiff) appeals as Administrator of the estate of Stella Watson from an order granting Defendant partial summary judgment. For the following reasons, we affirm.
Plaintiff represents the estate of her mother, Stella Watson. Ms. Watson, ninety-one years old, was a patient at Glenbridge Health and Rehabilitation Center, an adult care home and nursing home owned and operated by Defendant, from 13 October 2008 until her death on 28 February 2009. Ms. Watson entered the facility at the recommendation of her physician following pacemaker surgery because she needed to be transported to her regular dialysis treatments for her renal failure without risking tearing her pacemaker loose if lifted under her arms. On 9 February 2009, Ms. Watson was transported in her wheelchair to and from her dialysis by a Glenbridge employee. During the return trip, Ms. Watson's wheelchair fell over with her in it. She fractured her right humerus and injured her knee and elbow. She was taken to the hospital, and nine days later returned to Glenbridge. Roughly one week following her return, Ms. Watson told her family that she did not want to continue dialysis treatment. According to Ms. Watson's death certificate and personal physician, she died on 28 February 2009 of complications from end-stage renal failure, diabetes, and bladder cancer.
Plaintiff filed the underlying action on 11 January 2011, claiming wrongful death, negligence, and punitive damages. Defendant filed a motion for summary judgment on 11 August 2011. At the motions hearing on 14 November 2011, Defendant stipulated to negligence for the purposes of the hearing and Plaintiff agreed to dismiss the punitive damages claim. The trial court ordered a partial summary judgment on the wrongful death claim and made a finding that there was no just reason for delaying the appeal on this order. Plaintiff filed notice of appeal on 5 December 2011 and a motion to stay on 6 December 2011. The motion to stay was granted on 12 December 2011.
Although this appeal is interlocutory because additional claims are pending in the lower court, we review this order of summary judgment according to Rule 54(b) of the North Carolina Rules of Civil Procedure:
When more than one claim for relief is presented in an action ... the court may enter a final judgment as to one or more but fewer than all of the claims ... only if there is no just reason for delay and it is so determined in the judgment. Such judgment shall then be subject to review by appeal....
N.C. Gen.Stat. § 1A–1, Rule 54(b) (2011). Here, the order for summary judgment determined that there was no just cause for delay. “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that ‘there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.’ “ In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008)(quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).
Plaintiff claims that the trial court erred in granting the motion for summary judgment because Plaintiff's evidence tended to show that it was reasonably foreseeable that Ms. Watson would choose to end her dialysis because of the immense pain she suffered on any attempts to move her as the result of her injuries. We disagree.
A claim for wrongful death must establish that the wrongful act of the defendant caused the death of the decedent. N.C. Gen.Stat. § 28A–18–2(a)(2011). While expert medical testimony is not necessarily required in all cases to establish this causation. See Jordan v. Glickman, 219 N.C. 388, 391, 14 S.E.2d 40, 42 (1941)(“We do not subscribe to the doctrine that the cause of death can be proven only by the opinion of a physician, or other expert witness.”). “Where a layman can have no well-founded knowledge and can do no more than indulge in mere speculation (as to the cause of a physical condition), there is no proper foundation for a finding by the trier without expert medical testimony.” Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E.2d 753, 760 (1965)(internal quotation marks and citations omitted). Further, it is well-established that when expert medical “testimony is based merely upon speculation and conjecture ... it is no different than a layman's opinion, and as such, is not sufficiently reliable to be considered competent evidence on issues of medical causation.” Azar v. Presbyterian Hosp., 191 N.C.App. 367, 371, 663 S.E.2d 450, 453 (2008) (citing Young v. Hickory Bus. Furn ., 353 N.C. 227, 230, 538 S.E.2d 912, 915 (2000)).
Here a fractured arm leading to a patient's death would be a process outside the knowledge of a layperson, requiring a connection by a medical expert. Plaintiff produced testimony from a medical expert on the subject of causation. However, this expert was unable to conclude that the injuries sustained by Ms. Watson were a cause of her death, proximate or actual. The death certificate listed three causes of death: renal disease, diabetes, and bladder cancer. According to the expert's testimony, who was the decedent's primary care physician and the author of the death certificate, it also stated “[o]ther significant conditions pertaining to death but not resulting in the underlying cause” in the section relevant to cause of death. Yet, this vague statement does nothing to support an assertion that the injuries were sustained as a result of Defendant's negligence. Instead, his testimony revealed that Ms. Watson's death resulted from a combination of these other disorders after Ms. Watson decided to end dialysis treatment. He further attributed this personal decision made by Ms. Watson, based on his own speculation, to depression and pain resulting from Defendant's negligence. This is insufficient to establish causation. See Azar, 191 N.C.App. at 371, 663 S.E.2d at 453 (finding that the plaintiff was unable to establish causation where the medical expert only speculated “as to whether decedent's bedsores were the proximate cause of ... death” and could only state that they were one of many causes of an infection where the patient died of complications from several ailments).
After examining the evidence in the light most favorable to Plaintiff, we find Plaintiff failed to present or forecast sufficient evidence to enable a reasonable jury to find that Defendant's negligence was the cause, proximate or actual, of Ms. Watson's death.
Affirmed. Judges McGEE and THIGPEN concur.
Report per Rule 30(e).