Diggs v. Novant Health, Inc.

Majority - GEER, Judge

Yes, the trial court erred in granting summary judgment to Forsyth Memorial Hospital, Inc. because plaintiff presented sufficient evidence to establish a prima facie case of apparent agency concerning the anesthesiology team and because the nurse expert's testimony was admissible under Rule 702 and precedent. No, the trial court did not err in granting summary judgment to Novant Health, Inc. and Novant Health Triad Region, L.L.C., as plaintiff failed to establish a basis for their liability. The court held that plaintiff's nurse expert, Rosalyn Marie Harris-Offutt, was qualified to testify under N.C.R. Evid. 702(b)(2). Her affidavit stated she devoted a majority of her professional time to active clinical nursing practice in the year preceding Diggs's injury, and defendants' arguments regarding her specific nursing role or past employment went to the weight, not the admissibility, of her testimony. Citing State v. Tyler and State v. White, the court reaffirmed that nurses, if qualified by study or experience, are competent to render expert opinions as to medical causation, and their testimony cannot be excluded simply because they are not physicians. Therefore, summary judgment for FMH on claims related to nursing staff negligence was erroneous. Regarding the anesthesiology team's negligence, the court found no evidence of an actual agency relationship between FMH and Piedmont or its personnel, consistent with precedent like Hylton v. Koontz and Hoffman v. Moore Reg’l Hosp., Inc. The contracts explicitly denied FMH control over the methods or details of Piedmont's work, and the billing and employment practices indicated an independent contractor relationship. However, the court adopted the Restatement (Second) of Torts § 429 to apply the doctrine of apparent agency for hospital liability. This requires proving that (1) the hospital held itself out as providing medical services, (2) the plaintiff looked to the hospital rather than the individual medical provider for those services, and (3) the patient accepted those services in the reasonable belief that they were rendered by the hospital or its employees. Plaintiff presented sufficient evidence to meet this test for FMH, including the existence of a hospital Department of Anesthesiology, Piedmont's exclusive contract, the lack of patient choice in anesthesiologists, Diggs's reliance on FMC for care, and the consent form's distinction between 'my physician' and 'the anesthetist/anesthesiologist'. Thus, the trial court erred in granting summary judgment to FMH on the apparent agency claims. The court affirmed summary judgment for Novant Health, Inc. and Novant Health Triad Region, L.L.C. as plaintiff failed to demonstrate any basis for their vicarious liability, either through direct employment or apparent agency. The court also reversed and remanded portions of the discovery order related to certain risk management documents, finding the record insufficient to determine if they were protected by work product doctrine or attorney-client privilege.