{ "id": 9250500, "name": "JOSEPH PATRICK SUMMEY, Plaintiff v. RONALD BARKER, FORSYTH COUNTY SHERIFF; and HARTFORD INSURANCE COMPANY, SURETY; MICHAEL SCHWEITZER, chief jailer of Forsyth County, in their official capacities; LINDA SIDES; JOE MADDUX, CORRECTIONAL MEDICAL SERVICES, INC., d/b/a CORRECTIONAL MEDICAL SYSTEMS a/k/a CORRECTIONAL MEDICAL SERVICES, Defendants", "name_abbreviation": "Summey v. Barker", "decision_date": "2002-12-03", "docket_number": "No. COA02-13", "first_page": "448", "last_page": "453", "citations": [ { "type": "official", "cite": "154 N.C. App. 448" } ], "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": "544 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "142 N.C. App. 688", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443380 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/142/0688-01" ] }, { "cite": "557 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "172", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "148 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9364551 ], "year": 2001, "pin_cites": [ { "page": "182", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/148/0178-01" ] }, { "cite": "499 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "775" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650568 ], "year": 1998, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0389-01" ] }, { "cite": "313 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "795" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 426", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526516 ], "year": 1984, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0426-01" ] }, { "cite": "553 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "427" }, { "parenthetical": "defining a health care provider" } ], "opinion_index": 1 }, { "cite": "146 N.C. App. 574", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11361102 ], "year": 2001, "pin_cites": [ { "page": "577" } ], "opinion_index": 1, "case_paths": [ "/nc-app/146/0574-01" ] }, { "cite": "557 S.E.2d 169", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "172" } ], "opinion_index": 1 }, { "cite": "148 N.C. App. 178", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9364551 ], "year": 2001, "pin_cites": [ { "page": "182" } ], "opinion_index": 1, "case_paths": [ "/nc-app/148/0178-01" ] } ], "analysis": { "cardinality": 620, "char_count": 14054, "ocr_confidence": 0.759, "pagerank": { "raw": 8.46656832223686e-08, "percentile": 0.4853290674475616 }, "sha256": "18caa045e36bc2567b262656d9d40806b86340567a4aa29e5185b1df5eac9221", "simhash": "1:0fa9c40a7c4dc7c0", "word_count": 2186 }, "last_updated": "2023-07-14T14:30:59.212861+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge GREENE dissents." ], "parties": [ "JOSEPH PATRICK SUMMEY, Plaintiff v. RONALD BARKER, FORSYTH COUNTY SHERIFF; and HARTFORD INSURANCE COMPANY, SURETY; MICHAEL SCHWEITZER, chief jailer of Forsyth County, in their official capacities; LINDA SIDES; JOE MADDUX, CORRECTIONAL MEDICAL SERVICES, INC., d/b/a CORRECTIONAL MEDICAL SYSTEMS a/k/a CORRECTIONAL MEDICAL SERVICES, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nFollowing the trial court\u2019s grant of summary judgment dismissing plaintiff Joseph Patrick Summey\u2019s medical malpractice and negligence actions, plaintiff presents two issues on appeal to this Court: (1) Did the trial court erroneously exclude his expert witness\u2019 testimony as a discovery sanction for plaintiff\u2019s failure to designate his expert in a timely fashion; and (2) Did the trial court err in granting summary judgment in favor of the defendants? We answer both questions, no; and therefore, we uphold the trial court\u2019s grant of summary judgment in favor of defendants.\nThe underlying facts to this appeal tend to show that on 22 October 1996, the Forsyth County Detention Center held plaintiff, a hemophiliac, on charges of illegally removing a child across state lines. The next day, plaintiff\u2019s hemophilia condition was evaluated by North Carolina Baptist Hospital and he was released back to the detention center. The following day, after his first appearance in criminal court, plaintiff contends that his nose started to bleed at the courthouse. Apparently, he was taken back to the detention center where a nurse employed by defendant, Correctional Medical Services, attended to him but did not observe any bleeding. Several hours later, at around 11:00 p.m., plaintiff\u2019s nose began to bleed rapidly and he was transported to Baptist Hospital for treatment.\nFrom that set of facts, plaintiff brought actions against Forsyth County Sheriff, Ronald Baker, Hartford Insurance Company (Surety for the Sheriff\u2019s bond), and Chief Jailer Michael Schweitzer alleging various collective acts of negligence apparently arising from their alleged failure to ensure that he was provided timely medical treatment for his nose bleed. Plaintiff also brought actions against certain medical providers including Correctional Medical Systems and its employees Linda Sides and Joe Maddux alleging collective acts of negligence which appear to amount to claims of medical negligence.\nPlaintiff voluntarily dismissed his initial action in June 1999 and re-filed it in October 1999; after which, the trial court entered a Consent Discovery Scheduling Order requiring plaintiff to designate his expert witnesses within 30 days of the conclusion of the appeal on 9 March 2000. Plaintiff should have designated his experts by 3 May 2001, but did not do so until 4 September 2001. Defendants moved for summary judgment alleging there were no genuine issues of material fact and citing plaintiffs failure to designate his experts in accordance with the Consent Discovery Scheduling Order. Plaintiff moved for an extension of time to designate his experts on 4 September 2001. The trial court denied plaintiffs motion and granted defendant\u2019s motion for summary judgment.\nDiscovery Sanctions\n\u201cIf a party fails to identify an expert witness as ordered, the court shall, upon motion by the moving party, impose an appropriate sanction, which may include dismissal of the action, entry of default against the defendant, or exclusion of the testimony of the expert witness at trial.\u201d N.C. Gen. Stat. 1A-1, Rule 26(fl) (2001). The choice of sanctions lies within the court\u2019s discretion and will not be overturned on appeal absent a showing of abuse of discretion. See Routh v. Weaver, 67 N.C. App. 426, 429, 313 S.E.2d 793, 795 (1984).\nIn this case, plaintiff failed to designate his experts by 3 May 2001 as he should have according to the 9 March 2000 Consent Discovery Scheduling Order. In fact, plaintiff did not designate his experts until 4 September 2001, almost four months after the ordered date, and more than one month after defendants notified plaintiff of his noncompliance. Apparently, the trial judge chose to exclude any testimony from plaintiff\u2019s experts as a sanction for plaintiff\u2019s noncompliance with the discovery order. Surely, evidence in the record showing that plaintiff failed to comply with the discovery order for several months, supports the conclusion that the trial court did not abuse its discretion by excluding the proffered testimony. Moreover, the fact that the defendants may have had notice of the expert witness from earlier depositions, did not relieve the plaintiff of the obligation to comply with the subsequent consent order. Accordingly, we hold that the plaintiff has not shown that the trial court abused its discretion in denying his motion for an extension of time to designate expert witnesses.\nReview of Summary Judgment\nUnder N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2001), summary judgment \u201cshall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.\u201d The moving party bears the burden of showing that there are no genuine issues of material fact. See Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 394, 499 S.E.2d 772, 775 (1998). \u201cThe evidence is to be viewed in the light most favorable to the nonmoving party.\u201d Id.\nPlaintiff brought three claims against defendants: (I) negligence for not calling plaintiffs doctor when the nose bled at the courthouse; and, for not having done something sooner before plaintiffs nose began bleeding rapidly that night; (II) cruel and unusual punishment; and (III) breach of fiduciary and statutory duties. Plaintiff further alleged general acts which appear to constitute medical negligence on the part of the medical providers. On review of the evidence in the light most favorable to the plaintiff, we uphold the trial court\u2019s grant of summary judgment in favor of defendants.\nFirst, defendants\u2019 forecast of evidence indicates plaintiff was checked by the infirmary nurse upon his return from the courthouse and his nose was not bleeding at that time nor did his clothes or person have any blood on them; and, that night when his nose began bleeding rapidly, plaintiff was taken to the hospital immediately. Second, in medical malpractice actions, the \u201cplaintiff must demonstrate by the testimony of a qualified expert that the treatment administered by the defendant was in negligent violation of the accepted standard of medical care in the community and that defendant\u2019s treatment proximately caused the injury.\u201d Huffman v. Inglefield, 148 N.C. App. 178, 182, 557 S.E.2d 169, 172 (2001) (citations omitted). Since plaintiff did not timely designate his expert witnesses, plaintiff is unable to prove the defendants\u2019 behavior was a negligent violation of the accepted standard of medical care. Further, plaintiff did not bring forth any countervailing evidence or make any arguments in opposition to defendants\u2019 motion for summary judgment.\nIn sum, we uphold the trial court\u2019s exclusion of plaintiff\u2019s expert witness testimony as a sanction for failing to timely comply with the consent discovery order. We further affirm the trial court\u2019s grant of summary judgment in favor of defendants.\nAffirmed.\nJudge McGEE concurs.\nJudge GREENE dissents.\n. Defendants Barker, Schweitzer and Hartford Insurance Company appealed a 14 December 1999 order denying their N.C.R. Civ. P. 12(b)(6) motion to dismiss. In the motion, defendants claimed public official\u2019s immunity barred plaintiff\u2019s negligence claims. This Court affirmed the trial court\u2019s denial in an opinion filed 3 April 2001. See Summey v. Barker, 142 N.C. App. 688, 544 S.E.2d 262 (2001).\n. Plaintiff, in his 4 September 2001 motion for an extension of time, included the names of his experts and transcripts of their depositions taken in June 1999, prior to the voluntary dismissal of plaintiff\u2019s first complaint against these defendants.", "type": "majority", "author": "WYNN, Judge." }, { "text": "GREENE, Judge,\ndissenting in part.\nAs (I) the trial court erred in failing to consider lesser sanctions for plaintiff\u2019s discovery misconduct and (II) I disagree with the majority that this action was solely a medical malpractice action, I dissent in part.\nI\nIn this case, the trial court\u2019s exclusion of plaintiff\u2019s experts had the same effect as a dismissal of plaintiff\u2019s medical malpractice action. While the imposition of sanctions for discovery misconduct is within the discretion of the trial court, this Court has held that before the trial court selects as severe a sanction as dismissal, it must first determine the appropriateness of lesser sanctions. Wilder v. Wilder, 146 N.C. App. 574, 577, 553 S.E.2d 425, 427 (2001). In other words, the trial court must make findings and conclusions indicating it has considered less drastic sanctions. Id. Less drastic sanctions in this case could have included staying further proceedings until plaintiff complied with the trial court\u2019s order, finding plaintiff in contempt of court, or requiring plaintiff to pay the reasonable expenses, including attorney\u2019s fees, caused by his failure to comply. See N.C.G.S. \u00a7 1A-1, Rule 37(b)(2) (2001) (available sanctions for failure to obey Rule 26(f) discovery conference order).\nIn this case, the trial court made no findings with respect to the appropriateness of lesser sanctions. As such, the trial court\u2019s exclusion of plaintiff\u2019s experts and its resulting grant of summary judgment with respect to plaintiff\u2019s medical malpractice action must be reversed and remanded for consideration of lesser sanctions.\nII\nEven if the trial court\u2019s exclusion of plaintiff\u2019s experts was justified, this Court still would need to consider whether summary judgment with respect to defendants Sheriff Ronald Barker, Chief Jailer Michael Schweitzer, and the Hartford Insurance Company was appropriate as plaintiffs suit against these defendants was not a medical malpractice action.\nA medical malpractice action is defined as \u201ca civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.\u201d N.C.G.S. \u00a7 90-21.11 (2001). None of the aforementioned defendants can be considered a health care provider. See id. (defining a health care provider). Furthermore, plaintiff does not allege the jail personnel, as opposed to the medical personnel available at the correctional facility, failed to furnish professional medical services which they were capable of rendering. Instead, plaintiff argues the jail personnel failed to fulfil their fiduciary and statutory duties under N.C. Gen. Stat. \u00a7 160A-59 et seq. and the North Carolina Constitution by not timely bringing his medical needs to the attention of a designated health care provider.\nAs plaintiff\u2019s action against the jail itself does not constitute a medical malpractice action, it is of no consequence that, as stated by the majority, upon exclusion of plaintiffs experts by the trial court, plaintiff was not able to meet the evidentiary burden required in a medical malpractice action. See Huffman v. Inglefield, 148 N.C. App. 178, 182, 557 S.E.2d 169, 172 (2001) (in medical malpractice actions, the plaintiff must \u201cdemonstrate by the testimony of a qualified expert that the treatment administered by the defendant was in negligent violation of the accepted standard of medical care in the community and that [the] defendant\u2019s treatment proximately caused the injury\u201d). Accordingly, summary judgment in favor of the sheriff, the chief jailer, and the jail\u2019s insurer on this basis alone would be error.\nWhere the trial court, however, grants a motion for summary judgment without delineating its reasons for doing so, as the trial court did in this case, this Court must determine whether there is any basis for upholding the trial court\u2019s order. Because I agree with the majority that there are no genuine issues of material fact with respect to plaintiff\u2019s negligence claim against the sheriff, the chief jailer, and the jail\u2019s insurer, I would therefore affirm summary judgment with respect to these defendants.", "type": "dissent", "author": "GREENE, Judge," } ], "attorneys": [ "Parrish Smith & Ramsey, L.L.P., by Steven D. Smith, for plaintiff-appellant.", "Smith Helms Mulliss & Moore, L.L.P., by Lisa Frye Garrison and Alan W. Duncan, for Linda Sides and Correctional Medical Services, defendant-appellees.", "Womble, Carlyle Sandridge & Rice, by Allan R. Gitter and Oliver M. Read, IV, for Ronald Barker, Hartford Insurance Company and Michael Schweitzer defendant-appellees." ], "corrections": "", "head_matter": "JOSEPH PATRICK SUMMEY, Plaintiff v. RONALD BARKER, FORSYTH COUNTY SHERIFF; and HARTFORD INSURANCE COMPANY, SURETY; MICHAEL SCHWEITZER, chief jailer of Forsyth County, in their official capacities; LINDA SIDES; JOE MADDUX, CORRECTIONAL MEDICAL SERVICES, INC., d/b/a CORRECTIONAL MEDICAL SYSTEMS a/k/a CORRECTIONAL MEDICAL SERVICES, Defendants\nNo. COA02-13\n(Filed 3 December 2002)\n1. Discovery\u2014 scheduling order \u2014 failure to designate expert \u2014 sanction\nThe trial court did not abuse its discretion in an action for not promptly treating a hemophilic inmate\u2019s nose bleed by denying plaintiffs motion for an extension of time to designate an expert witness where plaintiff did not comply with a consent discovery scheduling order. The fact that the defendants may have had notice of the expert witnesses from earlier depositions did not relieve defendant of the obligation to comply with the order.\n2. Prisons and Prisoners\u2014 hemophilic inmate\u2019s bleeding nose \u2014 promptness of treatment \u2014 summary judgment for defendants\nThe trial court did not err by granting summary judgment for defendants in an action for not promptly treating a hemophilic inmate\u2019s nose bleed where defendant\u2019s forecast of evidence indicates that plaintiff was checked by a nurse upon his return from the courthouse and was not bleeding and that he was taken to the hospital immediately when he began bleeding; plaintiff did not timely designate his expert witnesses; and plaintiff did not bring forth countervailing evidence or make any arguments in opposition to defendant\u2019s motion for summary judgment.\nJudge Greene dissenting.\nAppeal by plaintiff from order entered 24 September 2001 by Judge Clarence W. Carter, Superior Court, Forsyth County. Heard in the Court of Appeals 8 October 2002.\nParrish Smith & Ramsey, L.L.P., by Steven D. Smith, for plaintiff-appellant.\nSmith Helms Mulliss & Moore, L.L.P., by Lisa Frye Garrison and Alan W. Duncan, for Linda Sides and Correctional Medical Services, defendant-appellees.\nWomble, Carlyle Sandridge & Rice, by Allan R. Gitter and Oliver M. Read, IV, for Ronald Barker, Hartford Insurance Company and Michael Schweitzer defendant-appellees." }, "file_name": "0448-01", "first_page_order": 476, "last_page_order": 481 }