{ "id": 8525689, "name": "JOANNA COWAN, Executrix of the Estate of JAMES DOUGLAS JACOBS v. BRIAN CENTER MANAGEMENT CORPORATION, BRIAN CENTER OF ASHEBORO, INC., ASHEBORO FAMILY PHYSICIANS, INC., LAWRENCE E. PERRY and ROBERT VANDENBERG", "name_abbreviation": "Cowan v. Brian Center Management Corp.", "decision_date": "1993-04-06", "docket_number": "No. 9215SC140", "first_page": "443", "last_page": "451", "citations": [ { "type": "official", "cite": "109 N.C. App. 443" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "61 ALR3d 906", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "367 S.E.2d 910", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 111", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2516768, 2514825, 2513711, 2515794, 2515476 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0111-03", "/nc/322/0111-04", "/nc/322/0111-02", "/nc/322/0111-01", "/nc/322/0111-05" ] }, { "cite": "363 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "218" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358210 ], "year": 1988, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0347-01" ] }, { "cite": "312 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "67 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525726 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/67/0104-01" ] }, { "cite": "309 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 815", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762404 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0815-01" ] }, { "cite": "303 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "63 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524430 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/63/0151-01" ] }, { "cite": "424 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549314, 2546630, 2549526, 2549465, 2547486 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0254-02", "/nc/333/0254-05", "/nc/333/0254-04", "/nc/333/0254-03", "/nc/333/0254-01" ] }, { "cite": "420 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "208" }, { "page": "208", "parenthetical": "the approved jury instructions included a statement that \"[u]pon a showing of gross, willful or wanton negligence, whether to award punitive damages, and within reasonable limits, the amount to be awarded are matters within the sound discretion of the jury\"" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527586 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "360" }, { "page": "360" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0356-01" ] }, { "cite": "404 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544832, 2540705, 2539189, 2543193, 2543230 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0731-03", "/nc/328/0731-04", "/nc/328/0731-02", "/nc/328/0731-05", "/nc/328/0731-01" ] }, { "cite": "399 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 255", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527593 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0255-01" ] }, { "cite": "297 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561492 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0267-01" ] }, { "cite": "291 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "904" }, { "page": "904" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 373", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524591 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "384-85" }, { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0373-01" ] }, { "cite": "378 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "although complaint dismissed with prejudice, cannot raise constitutional question for first time on appeal" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528064 ], "year": 1989, "pin_cites": [ { "parenthetical": "although complaint dismissed with prejudice, cannot raise constitutional question for first time on appeal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0414-01" ] }, { "cite": "269 S.E.2d 547", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "300 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562647 ], "year": 1980, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0381-01" ] }, { "cite": "947 F.2d 95", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10521006 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/f2d/947/0095-01" ] }, { "cite": "111 S. Ct. 1032", "category": "reporters:federal", "reporter": "S. Ct.", "case_ids": [ 11317824 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/us/499/0001-01" ] }, { "cite": "243 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1978, "pin_cites": [ { "page": "150" }, { "page": "150" } ], "opinion_index": 0 }, { "cite": "36 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551324 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc-app/36/0103-01" ] }, { "cite": "92 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1956, "pin_cites": [ { "page": "396-97" }, { "page": "396-97" } ], "opinion_index": 0 }, { "cite": "244 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219545 ], "weight": 2, "year": 1956, "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0023-01" ] }, { "cite": "347 S.E.2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735680, 4736315, 4735915, 4739582 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0281-04", "/nc/318/0281-03", "/nc/318/0281-02", "/nc/318/0281-01" ] }, { "cite": "344 S.E.2d 130", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 1986, "pin_cites": [ { "page": "132" }, { "page": "133" }, { "page": "218-19" }, { "page": "133", "parenthetical": "approving jury instructions" }, { "page": "133" }, { "page": "133" }, { "page": "133" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 213", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522224 ], "weight": 7, "year": 1986, "pin_cites": [ { "page": "217" }, { "page": "218" }, { "page": "218" }, { "page": "218" }, { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0213-01" ] }, { "cite": "321 S.E.2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757024, 4751561, 4757552, 4757266, 4755539 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0085-02", "/nc/312/0085-05", "/nc/312/0085-03", "/nc/312/0085-04", "/nc/312/0085-01" ] }, { "cite": "316 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "69 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525747 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/69/0064-01" ] } ], "analysis": { "cardinality": 855, "char_count": 17972, "ocr_confidence": 0.731, "pagerank": { "raw": 8.542011680039537e-08, "percentile": 0.4876931048875823 }, "sha256": "138f433115e99907e38d6967f4e5b90945fc3d00c1513bda46f064360068eea9", "simhash": "1:24a1fc6c04bfa05e", "word_count": 2882 }, "last_updated": "2023-07-14T20:43:31.464788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge COZORT concur." ], "parties": [ "JOANNA COWAN, Executrix of the Estate of JAMES DOUGLAS JACOBS v. BRIAN CENTER MANAGEMENT CORPORATION, BRIAN CENTER OF ASHEBORO, INC., ASHEBORO FAMILY PHYSICIANS, INC., LAWRENCE E. PERRY and ROBERT VANDENBERG" ], "opinions": [ { "text": "LEWIS, Judge.\nOn 7 June 1990 plaintiff, executrix for the estate of her father, Dr. Jacobs, filed this action seeking compensatory and punitive damages for the wrongful death of her father pursuant to N.C.G.S. \u00a7 28A-18-2. The defendants are Brian Center of Asheboro, Inc., a skilled nursing care facility, Brian Center Management Corporation, its parent company (both hereinafter referred to as \u201cBrian Center\u201d), the physicians assigned to care for Dr. Jacobs, and their professional association, Asheboro Family Physicians, Inc. (hereinafter collectively referred to as \u201cthe physicians\u201d). In October 1991 both the physicians and Brian Center filed a motion for partial summary judgment on the issue of punitive damages. Judge Allen held a hearing on 4 November and granted defendants\u2019 motions on 12 November. Plaintiff appeals from this partial summary judgment order.\nThe evidence, viewed in the light most favorable to plaintiff as it must be on this motion for summary judgment, Snipes v. Jackson, 69 N.C. App. 64, 316 S.E.2d 657, appeal dismissed and disc. rev. denied, 312 N.C. 85, 321 S.E.2d 899 (1984), indicates that on 17 March 1989 Dr. Jacobs, then 91 years old, was taken to the emergency room at Alamance Memorial Hospital with \u201ccomplaints of progressive weakness and somnolence for a period of three days.\u201d Dr. Jacobs was admitted to the hospital and treated by Dr. Javed Masoud for congestive heart failure, pleural effusion and dehydration. He was given diuretics to remove the fluid from his body tissues and lungs. In April 1989 blood testing performed at the hospital indicated upward fluctuation in Dr. Jacobs\u2019 blood, urine and nitrogen (BUN) levels. Such fluctuation indicates possible renal insufficiency, and thus requires careful attention to diuretic medications in order to maintain proper body fluid levels.\nOn 24 April 1989, Dr. Masoud discharged Dr. Jacobs to the Brian Center skilled nursing facility. The discharge summary listed, among other medications, two diuretics to be administered twice daily. Dr. Vandenberg, Dr. Jacobs\u2019 primary physician at the Brian Center, reviewed Dr. Jacobs\u2019 condition upon admission and recommended a continuation of the diuretic medications. Dr. Jacobs weighed 119 pounds when he was admitted to the Brian Center.\nNursing notes maintained by the Brian Center staff from April 24 to May 24 revealed no symptoms of congestive heart failure or pleural effusion. However, Dr. Jacobs\u2019 BUN levels during that period increased \u201cto a dangerously high level of 84.\u201d Plaintiff points out that for the month of May the daily records of Dr. Jacobs\u2019 meal consumption were incomplete and sometimes inconsistent with the nurse\u2019s handwritten notes. Records of his meal consumption for the month of June were also incomplete. During this time Dr. Jacobs\u2019 was losing weight, so that by June 14 he only weighed 10972 pounds.\nOn June 19 Dr. Perry, Dr. Jacobs\u2019 other attending physician at the Brian Center, was informed of an acute episode of elevated blood pressure, respiratory difficulty and an inability to swallow. Dr. Jacobs\u2019 blood tests and elevated BUN levels revealed continuing dehydration. Dr. Perry ordered \u201cForce Fluids.\u201d Dr. Jacobs continued on the same diuretics, and no further blood tests were ordered at the Brian Center.\nIn July and August the nurses noted problems with swollen, darkened feet, indicating possible circulatory and fluid problems, and early bed sores, but failed to inform the physicians of these developments. Dr. Vandenberg saw Dr. Jacobs on 24 August, but did not reassess weight loss, hydration status, or medication levels. Dr. Jacobs\u2019 condition deteriorated in early September, and on 8 September he was transferred to Randolph Hospital. Upon admission his BUN levels were at 136 and he was suffering from \u201cprofound dehydration.\u201d Dr. Jacobs died from pneumonia on 17 September 1989.\nPlaintiff presents three arguments on appeal. First, she alleges defendants, who had the burden of proof on their motions for summary judgment, could not have been entitled to summary judgment since the only evidence before the court consisted of the documents on file, which included plaintiff\u2019s complaint, the expected testimony of plaintiff\u2019s experts, and an affidavit of Dr. Irving Vinger. Second, plaintiff contends that genuine issues of material fact existed on the issue of gross negligence based on the admissions and arguments of defense counsel. Finally, plaintiff objects to the admission of the deposition of Dr. Javed Masoud after the close of the 4 November hearing without giving plaintiff the opportunity to respond.\nInitially, we must determine what level of conduct must be shown to entitle plaintiff to punitive damages in a wrongful death action. We will then ascertain whether defendants met their burden of proof on their summary judgment motions.\nA. Wrongful Death Statute: N.C.G.S. \u00a7 28A-18-2\nA wrongful death action must be brought pursuant to the wrongful death statute, because no such cause of action existed at common law. See Cole v. Duke Power Co., 81 N.C. App. 213, 217, 344 S.E.2d 130, 132, disc. rev. denied, 318 N.C. 281, 347 S.E.2d 462 (1986). According to the statute, punitive damages may be recovered \u201cfor wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence . . . .\u201d N.C.G.S. \u00a7 28A-18-2(b)(5) (Cum. Supp. 1992).\nDefendant physicians strenuously argue that proof of gross negligence is not enough to recover punitive damages. Finding no definition in the statute, the physicians contend the legislature intended the term \u201cgross negligence\u201d to be synonymous with wanton conduct. See Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393 (1956). Brian Center, relying on Hinson, contends that the term \u201cgross negligence\u201d is too vague unless it is defined as willful and wanton conduct, meaning \u201cconscious and intentional disregard of and indifference to the rights and safety of others.\u201d Id. at 28, 92 S.E.2d at 396-97. Defendants highlight the case of Robinson v. Duszynski, 36 N.C. App. 103, 243 S.E.2d 148 (1978), wherein the Court addressed the definition of gross negligence under the wrongful death statute. The Court, citing Hinson, stated \u201c[i]n cases where plaintiff\u2019s action was grounded on negligence, our courts have referred to gross negligence as the basis for recovery of punitive damages, using that term in the sense of wanton conduct.\u201d Id. at 106, 243 S.E.2d at 150.\nBrian Center challenges the constitutionality of a gross negligence standard under two recent cases, Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. ---, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991) and Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir. 1991). We decline to address this issue, because it is well settled that a constitutional issue may not be raised for the first time on appeal. Commissioner of Ins. v. Rate Bureau, 300 N.C. 381, 428, 269 S.E.2d 547, 577 (1980); Rivenbark v. Southmark Corp., 93 N.C. App. 414, 378 S.E.2d 196 (1989) (although complaint dismissed with prejudice, cannot raise constitutional question for first time on appeal).\nWe note that the caselaw is somewhat contradictory on the definition of gross negligence. Defendants acknowledge the cases cited by plaintiff, including Cole v. Duke Power Co., 81 N.C. App. 213, 344 S.E.2d 130, disc. rev. denied, 318 N.C. 281, 347 S.E.2d 462 (1986), and Beck v. Carolina Power & Light Co., 57 N.C. App. 373, 291 S.E.2d 897, aff\u2019d per curiam, 307 N.C. 267, 297 S.E.2d 397 (1982). Cole and Beck hold that gross negligence is distinct from willful and wanton conduct. In Cole the Court stated that \u201c[b]y providing for recovery of punitive damages upon a showing of \u2018maliciousness, wilful or wanton injury, or gross negligence\u2019 it appears that the General Assembly intended to establish three separate categories of conduct which would afford a recovery.\u201d 81 N.C. App. at 218, 344 S.E.2d at 133. Thus, \u201cgross negligence is something less than wilful and wanton conduct,\u201d and is \u201cnegligence of an aggravated character.\u201d Id. at 218-19, 344 S.E.2d at 133 (approving jury instructions). Beck defines gross negligence as the \u201cabsence of even slight care,\u201d and approved jury instructions describing it as \u201cindifference to the rights and welfare of others.\u201d 57 N.C. App. at 384-85, 291 S.E.2d at 904.\nRecently, in Henderson v. LeBauer, 101 N.C. App. 255, 399 S.E.2d 142, disc. rev. denied, 328 N.C. 731, 404 S.E.2d 868 (1991), this Court specifically recognized that recovery may be had under the wrongful death statute on the basis of gross negligence even in the absence of willful or wanton conduct. Id. at 262, 399 S.E.2d at 146 (citing Cole, 81 N.C. App. 213, 344 S.E.2d 130). The Court defined gross negligence as \u201cnegligence of an aggravated character.\u201d Id.\nOn the other hand, Hinson and Robinson both hold that gross negligence is equivalent to willful and wanton conduct. Hinson, 244 N.C. at 28, 92 S.E.2d at 396-97; Robinson, 36 N.C. App. at 106, 243 S.E.2d at 150. In Berrier v. Thrift, 107 N.C. App. 356, 420 S.E.2d 206 (1992) disc. rev. denied, 333 N.C. 254, 424 S.E.2d 918 (1993), this Court did not distinguish between gross negligence and willful and wanton conduct. It lumped all three terms together as one standard in approving the following jury instruction:\nIn a case of alleged negligence, punitive damages may be awarded upon the showing that the negligence was gross, willful or wanton. Negligence is gross, willful or wanton when the wrongdoer acts with a conscious and intentional disregard of and indifference to the rights and safety of others.\n107 N.C. App. at 360, 420 S.E.2d at 208.\nIn order to give effect to the wording of the wrongful death statute, we must treat gross negligence as something distinct from willful and wanton conduct. See Cole, 81 N.C. App. at 218, 344 S.E.2d at 133. We are guided by the more recent decisions of Cole, Beck, and Henderson in holding that gross negligence is \u201csomething less than willful and wanton conduct,\u201d Cole, 81 N.C. App. at 218, 344 S.E.2d at 133, and includes \u201cthe absence of even slight care,\u201d Beck, 57 N.C. App. at 384, 291 S.E.2d at 904, \u201cindifference to the rights and welfare of others,\u201d id., and \u201cnegligence of an aggravated character.\u201d Cole, 81 N.C. App. at 219, 344 S.E.2d at 133; Henderson, 101 N.C. App. at 262, 399 S.E.2d at 146. We note that Hinson, decided in 1956, did not address the issue of punitive damages under the wrongful death statute.\nB. Summary Judgment\nSummary judgment is only appropriate where there are no genuine issues of material fact. N.C.G.S. \u00a7 1A-1, Rule 56(c) (1990). The party moving for summary judgment has the burden of proof, and the evidence must be viewed in the light most favorable to the nonmovant. Snipes v. Jackson, 69 N.C. App. 64, 316 S.E.2d 657, appeal dismissed and disc. rev. denied, 312 N.C. 85, 321 S.E.2d 899 (1984). In the absence of supporting affidavits, the motion for summary judgment is based upon \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file ....\u201d\u00a7 1A-1, Rule 56(c). Plaintiff points out it is for the jury to decide whether gross negligence existed. See Berrier, 107 N.C. App. at 360, 420 S.E.2d at 208 (the approved jury instructions included a statement that \u201c[u]pon a showing of gross, willful or wanton negligence, whether to award punitive damages, and within reasonable limits, the amount to be awarded are matters within the sound discretion of the jury\u201d).\nPlaintiff contends defendants, in order to be successful on their motion, must produce a forecast of their evidence which would be sufficient to compel a verdict in their favor at trial. Coats v. Jones, 63 N.C. App. 151, 303 S.E.2d 655, aff'd, 309 N.C. 815, 309 S.E.2d 253 (1983). In this case, defendants did not submit any affidavits in support of their motion. The court, therefore, could only have considered the documents on file, which consisted of the allegations in plaintiff\u2019s complaint, the expected testimony of plaintiff\u2019s experts set forth in a Designation of Experts, and an affidavit of Dr. Irving Vinger originally filed on 8 October 1990. Plaintiff maintains that the court could not have decided in favor of defendant based on this evidence, unless the court impermissibly considered the oral arguments of defendant as evidence, Gebb v. Gebb, 67 N.C. App. 104, 312 S.E.2d 691 (1984), and considered the documents cited in response to plaintiff\u2019s opposition to the motion.\nWe agree with plaintiff that the evidence on file indicated the existence of genuine issues of material fact regarding gross negligence on the part of defendants. The jury should be allowed to determine whether defendants\u2019 conduct, although probably not willful and wanton, amounted to, among other things, \u201cthe absence of even slight care,\u201d \u201cindifference to the rights and welfare of others,\u201d or \u201cnegligence of an aggravated character.\u201d\nPlaintiff\u2019s expert, Dr. Vinger, stated in his affidavit that defendants\u2019 conduct amounted to gross negligence. Rather than relying upon this conclusion, however, plaintiff emphasizes that Dr. Vinger listed the specific breaches in his affidavit and subsequent deposition. These breaches include failure to make an adequate physical assessment of Dr. Jacobs, failure to monitor intake and output levels, failure to monitor weight loss, failure to monitor diuretic medications and recognize dehydration and fluid volume depletion, failure to keep accurate records, and failure to timely contact physicians. Dr. Vinger felt that Dr. Jacobs was in a life-threatening position on 4 September 1989, and that it was an \u201coutrageous deviation of the standard of care and reckless disregard for the decedent\u2019s needs\u201d to fail to notify a physician until 8 September.\nPlaintiff contends the depositions of Dr. Haber and Dr. Miller corroborate Dr. Vinger\u2019s position, as do the depositions of nurses Karen McDonald and Linda Dury. Dr. Miller referred to the following deviations from the proper standard of care: continuation of diuretics with no evidence of congestive heart failure, failure to monitor decedent\u2019s weight on a weekly basis, failure to monitor blood values to determine the state of hydration, failure to investigate weight loss, and failure to monitor fluid and nutrition status. Dr. Haber agreed that the foregoing were breaches of the standard of care.\nThe nurses noted further deviations from the standard of care, such as chart discrepancies in food consumption and failure to monitor pulse and blood pressure on a weekly basis. Also, Nurse Dury stated the Brian Center was understaffed and had a history of negligent treatment of residents. Plaintiff refers to investigative reports which put Brian Center on notice of certain problems, such as prior failure to maintain proper documentation.\nDefendants contend that plaintiff\u2019s evidence at the most shows only ordinary negligence. Defendants point out that the experts disagree on what would have been the proper course of treatment for Dr. Jacobs, and also disagree over whether gross negligence was involved. We believe that such disagreement shows the necessity of allowing the jury to decide the existence of gross negligence in this case. Furthermore, we note that matters regarding the credibility and weight of the evidence are for the jury. Burrow v. Westinghouse Elec. Corp., 88 N.C. App. 347, 351, 363 S.E.2d 215, 218, disc. rev. denied, 322 N.C. 111, 367 S.E.2d 910 (1988).\nBecause we are reversing the order of partial summary judgment, we need not address plaintiff\u2019s remaining arguments.\nReversed and remanded.\nChief Judge ARNOLD and Judge COZORT concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Law Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr. and Martin A. Rosenberg, for plaintiff-appellant.", "Tuggle Duggins & Meschan, P.A., by J. Reed Johnston, Jr. for defendants-appellees Brian Center Management Corporation and Brian Center of Asheboro, Inc.", "Yates, McLamb & Weyher, by Bruce W. Berger and George B. Autry, Jr., for defendants-appellees Asheboro Family Physicians, Inc., Lawrence E. Perry and Robert Vandenberg." ], "corrections": "", "head_matter": "JOANNA COWAN, Executrix of the Estate of JAMES DOUGLAS JACOBS v. BRIAN CENTER MANAGEMENT CORPORATION, BRIAN CENTER OF ASHEBORO, INC., ASHEBORO FAMILY PHYSICIANS, INC., LAWRENCE E. PERRY and ROBERT VANDENBERG\nNo. 9215SC140\n(Filed 6 April 1993)\n1. Death \u00a7 31 (NCI4th)\u2014 wrongful death statute \u2014gross negligence \u2014 definition\n\u201cGross negligence\u201d as that term is used in the wrongful death statute is something less than willful and wanton conduct, and includes the absence of even slight care, indifference to the rights and welfare of others, and negligence of an aggravated character. N.C.G.S. \u00a7 28A-18-2(b)(5).\nAm Jur 2d, Death \u00a7\u00a7 1 et seq.\nModern status of rule denying a common-law recovery for wrongful death. 61 ALR3d 906.\n2. Damages \u00a7 132 (NCI4th)\u2014 wrongful death \u2014punitive damages \u2014 genuine issues of fact as to gross negligence\u2014 summary judgment improper\nIn an action to recover for the wrongful death of a patient in defendant skilled nursing care facility, the trial court erred in granting the motion of defendant facility and defendant attending physicians for partial summary judgment on the issue of punitive damages, since the evidence on file indicated the existence of genuine issues of material fact regarding gross \u2022 negligence on the part of defendants in continuing diuretics with no evidence of congestive heart failure, failure to monitor decedent\u2019s weight on a weekly basis, failure to monitor blood values to determine the state of hydration, failure to investigate weight loss, failure to monitor fluid and nutrition status, failure to monitor pulse and blood pressure on a weekly basis, failure to maintain accurate food consumption charts, failure to make an adequate physical assessment of decedent, and failure to timely contact physicians.\nAppeal by plaintiffs from order entered 12 November 1991 by Judge J.B. Allen, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 11 January 1993.\nLaw Offices of Grover C. McCain, Jr., by Grover C. McCain, Jr. and Martin A. Rosenberg, for plaintiff-appellant.\nTuggle Duggins & Meschan, P.A., by J. Reed Johnston, Jr. for defendants-appellees Brian Center Management Corporation and Brian Center of Asheboro, Inc.\nYates, McLamb & Weyher, by Bruce W. Berger and George B. Autry, Jr., for defendants-appellees Asheboro Family Physicians, Inc., Lawrence E. Perry and Robert Vandenberg." }, "file_name": "0443-01", "first_page_order": 471, "last_page_order": 479 }