{ "id": 8205177, "name": "DIANNE ATKINS, Plaintiff v. RODNEY A. MORTENSON, M.D., Defendant", "name_abbreviation": "Atkins v. Mortenson", "decision_date": "2007-06-05", "docket_number": "No. COA06-854", "first_page": "625", "last_page": "631", "citations": [ { "type": "official", "cite": "183 N.C. App. 625" } ], "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": "641 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637850 ], "year": 2007, "pin_cites": [ { "page": "389", "parenthetical": "quoting Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003)" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0386-01" ] }, { "cite": "88 S.E.2d 762", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "242 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618023 ], "year": 1955, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0517-01" ] }, { "cite": "278 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170131 ], "year": 1981, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0234-01" ] }, { "cite": "442 S.E.2d 57", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "61", "parenthetical": "quoting Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570 (1981)" }, { "page": "62" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527523 ], "year": 1994, "pin_cites": [ { "page": "305", "parenthetical": "quoting Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0297-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0492-01" ] }, { "cite": "182 N.C. App. 95", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8169080 ], "year": 2007, "pin_cites": [ { "page": "97", "parenthetical": "quoting Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0095-01" ] }, { "cite": "324 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "298" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526633 ], "year": 1985, "pin_cites": [ { "page": "310" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0306-01" ] }, { "cite": "269 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "698" }, { "page": "698", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551423 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "504-05" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0497-01" ] }, { "cite": "501 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "656" } ], "opinion_index": 0 }, { "cite": "348 N.C. 537", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659850 ], "year": 1998, "pin_cites": [ { "page": "547" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0537-01" ] }, { "cite": "530 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "584" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 153", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078880 ], "year": 2000, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0153-01" ] }, { "cite": "361 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "896-97" }, { "page": "896" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358867 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "608" }, { "page": "608" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0606-01" ] }, { "cite": "536 S.E.2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2000, "pin_cites": [ { "page": "330" }, { "page": "330" }, { "page": "329-30" }, { "page": "329" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12124938 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "252-53" }, { "page": "251-52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0250-01" ] }, { "cite": "524 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2000, "pin_cites": [ { "page": "590" }, { "page": "590" }, { "page": "589" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239675 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "384" }, { "page": "384-85" }, { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0379-01" ] } ], "analysis": { "cardinality": 772, "char_count": 16220, "ocr_confidence": 0.744, "pagerank": { "raw": 9.134698835968411e-08, "percentile": 0.5074602805028401 }, "sha256": "ed77e87d1eeff3a1821809354f76c1afbb612d994b2fe7004a461423d792a10b", "simhash": "1:9363dd68151d9c41", "word_count": 2641 }, "last_updated": "2023-07-14T15:07:58.512650+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STROUD concur." ], "parties": [ "DIANNE ATKINS, Plaintiff v. RODNEY A. MORTENSON, M.D., Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nDianne Atkins (\u201cplaintiff\u2019) appeals from the trial court\u2019s decision to set aside an entry of default as well as the court\u2019s grant of summary judgment in favor of Rodney A. Mortensen, M.D. (\u201cdefendant\u201d). We affirm the trial court\u2019s rulings in both instances.\nPlaintiff became a patient of defendant when she saw him on 13 June 2001 for constant and severe pain in her left knee. An MRI revealed plaintiff was suffering from chondromalacia, a condition characterized by a tearing or thinning of the back side of the knee cap. After a lengthy discussion with defendant as to her options, plaintiff chose to have defendant perform an arthroscopic exploration and debridement on 3 July 2001. When plaintiffs pain persisted after the surgery, defendant performed a manipulation and lateral release on 5 October 2001 and a further manipulation on 11 November 2001. Plaintiff discontinued her treatment under defendant shortly thereafter.\nIn January 2002, plaintiff saw Dr. Ralph Leibelt for a second opinion concerning the pain she was continuing to experience in her knee. Dr. Leibelt diagnosed plaintiff with complex regional pain syndrome, and stated in a letter and an affidavit that if defendant had not considered this diagnosis, he had failed to follow the appropriate standard of care.\nOn 29 June 2002, plaintiff filed an action against defendant, citing his failure to recognize the symptoms of complex regional pain syndrome and recommend appropriate treatment. Defendant was-served on 20 July 2004 at his residence via certified mail. In accordance with the policy of defendant\u2019s place of employment, The Sports Medicine and Orthopaedic Center (\u201cSMOC\u201d), defendant delivered the summons and complaint to the office business manager, Ms. Kim Landreth. Pursuant to the procedures of SMOC, Ms. Landreth faxed the summons and complaint to MAG Mutual Insurance Company (\u201cMAG\u201d) on 27 July 2004, and thereafter called MAG to notify them of the lawsuit. However, MAG never received the summons and complaint, and therefore did not assign an attorney to file an answer.\nPlaintiff filed a motion for entry of default on 25 August 2004, and entry of default was granted by the Guilford County Superior Court on that same day. Plaintiff filed a motion for default judgment on 9 September 2004. The evidence presented at trial suggests defendant never received the motion for entry of default or motion for default judgment filed by plaintiff. Defendant\u2019s first knowledge of such actions was when he received the court calendar postmarked 21 September 2004 on which plaintiff\u2019s motion for default judgment appeared. Upon receipt of the calendar, defendant immediately contacted MAG and filed an answer. On 27 September 2004, defendant moved to set aside the entry of default, which the trial court granted on 4 October 2004.\nDefendant moved for summary judgment on 16 February 2006. Dr. Liebelt, the only expert witness identified by plaintiff, testified during his deposition that defendant did not violate the standard of care in his diagnosis and treatment of plaintiff. Although Dr. Liebelt had initially expressed some concern over the actions taken by defendant, after reviewing the relevant records as well as defendant\u2019s deposition, he ultimately concluded defendant\u2019s actions were well within his professional duty of care. Dr. Liebelt further indicated that even if defendant had identified the complex regional pain syndrome at an earlier stage, it might not have had any effect on plaintiff\u2019s condition. In light of this evidence, the trial court granted defendant\u2019s motion for summary judgment on 16 March 2006. Plaintiff appeals.\nI.\nPlaintiff first argues that the trial court erred in setting aside the entry of default because defendant failed to make the requisite showing of \u201cgood cause\u201d to warrant such action. Specifically, plaintiff contends defendant failed to take a sufficiently active role in monitoring the progress of the lawsuit, which precludes a showing of \u201cgood cause\u201d under Rule 55(d) of the North Carolina Rules of Civil Procedure. We disagree.\nRule 55(d) allows the court to set aside an entry of default upon a showing of \u201cgood cause.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 55(d) (2005). As plaintiff suggests, courts of this state have found \u201cthe degree of attention or inattention shown by the defendant to be a particularly compelling factor\u201d in deciding whether to set aside an entry of default. Brown v. Lifford, 136 N.C. App. 379, 384, 524 S.E.2d 587, 590 (2000). In general, courts have been \u201camenable\u201d to setting aside such entries only where a defendant continued to monitor the case after referring the claim to his or her insurer. Id. \u201c[W]here a defendant merely passed the case to the insurance company but took no further action,\u201d courts have been less inclined to set aside an entry of default. Id.\nIndeed, on facts very similar to those here, this Court refused to set aside the entry of default due to the defendant\u2019s lack of attention to the claim filed against him. See Cabe v. Worley, 140 N.C. App. 250, 252-53, 536 S.E.2d 328, 330 (2000). In Cabe, the defendant delivered the summons and complaint to his insurance agent who assured him the documents would be forwarded to an attorney to handle his defense. Id. at 252, 536 S.E.2d at 330. After delivering the suit papers, however, the defendant had no further contact with his insurance company to inquire into the progress of the case. Id. When the defendant failed to file an answer, the trial court made an entry of default against him and refused to grant the defendant\u2019s motion to set such entry aside due to his inattention to the claim. Id.\nAlthough our opinion in Cabe focused primarily on the diligence of the defendant in assessing good cause, we have often balanced the defendant\u2019s diligence with the following additional factors when deciding whether to set aside an entry of default: (1) the harm suffered by the plaintiff by virtue of the delay and (2) the potential injustice to the defendant if not allowed to defend the action. Automotive Equipment Distributors, Inc. v. Petroleum Equipment & Service, Inc., 87 N.C. App. 606, 608, 361 S.E.2d 895, 896-97 (1987); see also First Citizens Bank & Tr. Co. v. Cannon, 138 N.C. App. 153, 157, 530 S.E.2d 581, 584 (2000); Brown, 136 N.C. App. at 384-85, 524 S.E.2d at 590.\nIn the case sub judice, however, we cannot base our decision solely on the diligence of defendant. In Cabe, there was no indication the defendant had any type of meritorious defense for the injuries caused by his negligent driving. See Cabe, 140 N.C. App. at 251-52, 536 S.E.2d at 329-30. Here, in contrast, the merits of the defense available to defendant are undisputed as indicated by the trial court\u2019s award of summary judgment to defendant. Further, the multi-million dollar judgment and damage to defendant\u2019s professional reputation are significantly greater than the $25,000 in damages facing the defendant in Cabe when this Court refused to set aside the entry of default. See id. at 251, 536 S.E.2d at 329. Given the circumstances in the case at hand, defendant\u2019s diligence cannot be determinative as to the issue of setting aside the entry of default. Rather, we must weigh defendant\u2019s diligence against any harm to plaintiff from the delay or injustice to defendant if he is not allowed to defend the case.\nThe trial court\u2019s finding of good cause \u201cwill not be disturbed on appeal absent an abuse of discretion.\u201d Brown, 136 N.C. App. at 382, 524 S.E.2d at 589. This Court is not called upon to determine whether the facts of this case support a showing of good cause; instead, we are asked to review the trial court\u2019s reasoning to determine whether its finding of good cause in this specific case was \u201cmanifestly unsupported by reason or ... so arbitrary that it could not have been the result of a reasoned decision.\u201d Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998). Under the circumstances here, and in light of the law\u2019s preference for decisions on the merits, we conclude that the trial court did not abuse its discretion in setting aside the entry of default.\nAlthough the evidence presented here indicates defendant was less than diligent in handling the suit filed against him, the facts also suggest plaintiff would not be significantly harmed by the delay if the entry of default were set aside, whereas defendant would suffer grave injustice if it were not. In this case, defendant filed an answer only four days after what would have been required had he obtained an initial thirty-day extension. Therefore, the lapse of time from the point when plaintiff filed the complaint to when defendant filed his answer was not so great as to cause harm to plaintiff if the entry of default were set aside. Additionally, if the entry of default were not set aside defendant would be deprived of the opportunity to present a meritorious defense and would be subject to a substantial monetary judgment as well as a diminished reputation in the medical community.\nAccordingly, we hold that the trial court did not abuse its discretion in setting aside the entry of default even though defendant did not take any further action after delivering the claim to his office manager. The potentially grave damage to defendant coupled with the relatively short delay in processing the claim support the trial court\u2019s finding of good cause.\nFurther, \u201c[t]he law generally disfavors default and \u2018any doubt should be resolved in favor of setting aside an entry of default so that the case may be decided on its merits.\u2019 \u201d Automotive Equipment Distributors, Inc., 87 N.C. App. at 608, 361 S.E.2d at 896 (quoting Peebles v. Moore, 48 N.C. App. 497, 504-05, 269 S.E.2d 694, 698 (1980)). While it is clear that compliance with the time limitations established for filing an answer are important and defendants \u201c \u2018should not be permitted to flout them with impunity,\u2019 \u201d the significance of allowing every litigant to present his or her side of a disputed controversy is also readily apparent. Peebles, 48 N.C. App. at 504, 269 S.E.2d at 698 (citation omitted). Failure to comply with these time limitations because of inadequate communication between an insured and his insurance company resulting in a short delay in answering the complaint does not warrant a multi-million dollar judgment where such a result cannot be justified based on the merits of the action. Accordingly, we affirm the trial court\u2019s decision to set aside the entry of default.\nII.\nPlaintiff\u2019s second argument on appeal is that the trial court erred in granting summary judgment in favor of defendant. Plaintiff contends that defendant owed her a duty of reasonable care in assessing and diagnosing her physical condition and that defendant breached this duty of care. However, plaintiff presented no evidence at trial suggesting that defendant breached the standard of care nor that such a breach, if it occurred, caused her harm. Therefore, we affirm the trial court\u2019s award of summary judgment to defendant.\nSummary judgment is appropriate when \u201cthe 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 N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). When a defendant moves for summary judgment and offers evidence demonstrating that no genuine issue of material fact exists or that the plaintiff cannot make out an essential element of her claim, the plaintiff must then come forward with specific facts showing a genuine issue of material fact for trial. Beaver v. Hancock, 72 N.C. App. 306, 310, 324 S.E.2d 294, 298 (1985). \u201cWe review [the] trial court\u2019s order for summary judgment de novo to determine whether there is a \u2018genuine issue of material fact\u2019 and whether [defendant] is \u2018entitled to judgment as a matter of law.\u2019 \u201d Bolick v. County of Caldwell, 182 N.C. App. 95, 97, 641 S.E.2d 386, 389 (2007) (quoting Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003)).\nIn an alleged medical negligence case, as here, a plaintiff must offer evidence that establishes the following essential elements: \u201c \u2018(1) the standard of care [duty owed]; (2) breach of the standard of care; (3) proximate causation; and (4) damages.\u2019 \u201d Clark v. Perry, 114 N.C. App. 297, 305, 442 S.E.2d 57, 61 (1994) (quoting Lowery v. Newton, 52 N.C. App. 234, 237, 278 S.E.2d 566, 570 (1981)). Because the standard of care in a medical malpractice action generally involves specialized knowledge, expert testimony is necessary to establish the applicable standard of care and any corresponding breach. See id. at 305-06, 442 S.E.2d at 62; see also Hunt v. Bradshaw, 242 N.C. 517, 523, 88 S.E.2d 762, 766 (1955). The only expert identified by plaintiff in this case was Dr. Liebelt, and his testimony was that defendant did not violate the standard of care in the course of treatment he pursued with plaintiff. Dr. Liebelt indicated that plaintiff\u2019s medical records did not contain any objective signs of complex regional pain syndrome, and therefore defendant\u2019s choice to not discuss said condition with plaintiff or pursue any corresponding avenue of treatment did not violate his duty of care. Accordingly, plaintiff failed to present evidence demonstrating the second essential element of her medical malpractice claim.\nEven assuming defendant should have diagnosed the complex regional pain syndrome at an earlier stage, there is no indication that such a diagnosis would have improved plaintiffs condition or resulted in a different outcome than that currently experienced by plaintiff. Dr. Liebelt testified that there appears to be little or no benefit from many of the treatments for complex regional pain syndrome. He further explained that the physical therapy plaintiff contends should have been prescribed might have actually worsened her condition. Thus, assuming arguendo there is an issue of material fact as to whether defendant breached his duty of care by not making an early diagnosis, there is no evidence to support plaintiffs contention that the failed diagnosis actually caused her harm. As such, plaintiff also failed to present evidence related to the causation element of her negligence claim.\nBecause plaintiff failed to provide expert testimony that defendant breached his professional duty of care and such breach proximately caused plaintiff harm, she failed to sufficiently plead two essential elements of her claim for medical malpractice. Accordingly, the trial court properly granted summary judgment to defendant.\nThe trial court did not err in setting aside the entry of default or granting summary judgment to defendant. Therefore, we affirm.\nAffirmed.\nChief Judge MARTIN and Judge STROUD concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Douglas S. Harris for plaintiff-appellant.", "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Deanna Davis Anderson, for defendant-appellee." ], "corrections": "", "head_matter": "DIANNE ATKINS, Plaintiff v. RODNEY A. MORTENSON, M.D., Defendant\nNo. COA06-854\n(Filed 5 June 2007)\n1. Judgments\u2014 entry of default set aside \u2014 good cause \u2014 no significant harm versus grave injustice\nThe trial court did not abuse its discretion in setting aside an entry of default in a medical malpractice action even though defendant did not take further action after delivering the claim to his office manager. The facts suggest that plaintiff would not be significantly harmed by the delay if entry of default were set aside, while defendant would suffer grave injustice if it were not.\n2. Medical Malpractice\u2014 complex regional pain syndrome\u2014 failure to diagnose\nThe trial court did not err by granting summary judgment for the defendant in a medical malpractice case where there was no evidence to support the contention that the failure to diagnose complex regional pain syndrome actually caused plaintiff harm; plaintiff did not provide expert testimony that defendant breached his professional standard of care and that such breach caused plaintiff harm.\nAppeal by plaintiff from orders entered 4 October 2004 and 15 March 2006 by Judge Michael E. Helms in Guilford County Superior Court. Heard in the Court of Appeals 19 February 2007.\nDouglas S. Harris for plaintiff-appellant.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, L.L.P., by Deanna Davis Anderson, for defendant-appellee." }, "file_name": "0625-01", "first_page_order": 657, "last_page_order": 663 }