JAMIE D. MASSENGILL, Plaintiff-Appellant, v. DUKE UNIVERSITY
MEDICAL CENTER, trading and doing business as DUKE UNIVERSITY
HOSPITAL, PRIVATE DIAGNOSTIC CLINIC, Defendant, and PETER ANDREW
KNUTSON, Defendant-Appellee
Medical Malpractice--sexual assault upon patient--physicians' assistant not assigned to
patient--no professional relationship--summary judgment for defendant
The trial court did not err by granting summary judgment for defendant Knutson in a
medical malpractice action which arose from Knutson's sexual assault upon a patient to whom
he was not assigned but to whom he had access by way of his employment as a physicians'
assistant. Plaintiff failed to present evidence of a professional relationship, which must exist to
maintain a medical malpractice claim (although it would not be necessary for a civil assault or
battery claim).
Appeal by plaintiff James D. Massengill from judgment
entered 21 July 1998 by Judge Dexter Brooks, Superior Court,
Johnston County. Heard in the Court of Appeals 29 April 1999.
Lucas, Bryant & Denning, by Sarah E. Mills, for plaintiff-
appellant.
Jordan Price Wall Gray Jones & Carlton, L.L.C., by Laura J.
Wetsch, for defendant-appellee.
WYNN, Judge.
On 6 June 1995, Jamie Massengill was admitted to Duke
University Hospital for emergency surgery and further care
relating to injuries he suffered during an automobile collision
that day. At the time Massengill was admitted to Duke Hospital,
Peter Knutson worked in the cancer/oncology unit as a licensed
physicians' assistant. In this action, Massengill contends that on 9 and 10 June
1995, Knutson came into his hospital room, told him that he was
going to examine his surgical incisions, and thereafter committed
unlawful sexual acts upon him--touched his genitals, placed his
fingers inside his rectum, and committed fellatio upon him.
Undisputedly, Duke did not assign or instruct Knutson to provide
medical care to Massengill. Knutson, however, did have access to
Massengill by way of his employment.
As a result of the alleged unlawful acts, Massengill brought
a medical malpractice action against Duke University Medical
Center d/b/a Duke University Hospital, Private Diagnostic Clinic
as an alleged joint venturer with Duke Hospital, and Knutson as
an alleged agent of Duke Hospital and Private Diagnostic Clinic.
Thereafter, the trial court granted summary judgment in favor of
Knutson concluding that he was not providing professional
services necessary to support a medical malpractice claim.
On appeal, Massengill contends that the trial court erred in
granting Knutson's Motion for Summary Judgment because there are
genuine issues of material fact as to whether Knutson acted
unlawfully while performing “professional services” for
Massengill.
Summary judgment is proper when “the pleadings, depositions,
answers to interrogatories and admissions on file, together withthe affidavits, if any, show that there is no genuine issue as to
any material fact and that any party is entitled to judgment as a
matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c)(1990). When
ruling on a motion for summary judgment, the evidence is viewed
in the light most favorable to the non-moving party. See Hinson
v. Hinson, 80 N.C. App. 561, 563, 343 S.E.2d 266, 268 (1986).
Although the granting of summary judgment is a drastic remedy, it
is appropriate if the moving party meets the burden of proving
that an essential element of the non-moving party's claim is
nonexistent. See LaBarre v. Duke Univ., 99 N.C. App. 563, 565,
393 S.E.2d 321, 323, disc. review denied, 327 N.C. 635, 399
S.E.2d 122 (1990).
A medical malpractice action is one “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.” N.C.
Gen. Stat. § 90-21.11 (Supp. 1996). Both parties concede that
Knutson, as a licensed physicians' assistant, is a “health care
provider” under the statute. Indeed, the sole issue raised on
appeal is whether Knutson committed the unlawful acts while
furnishing “professional services” to Massengill. We hold that
Knutson was not furnishing Massengill “professional services,” an
essential element under N.C. Gen. Stat. § 90-21.11, andtherefore the trial court properly found that a medical-
malpractice action may not be maintained against Knutson.
Although the legislature failed to define the term
“professional services” as set forth in N.C. Gen. Stat. § 90-
21.11, our Supreme Court has stated that “the term 'professional
services' refers to 'those services where a professional
relationship exists between plaintiff and defendant--such as a
physician-patient or attorney-client relationship'.” Barger v.
McCoy Hillard & Parks, 346 N.C. 650, 665, 488 S.E.2d 215, 223
(1997). Indeed, it is well settled that the relationship of
health-care provider to patient must be established to maintain
an actionable claim for medical malpractice. See Easter v.
Lexington Mem. Hosp., 303 N.C. 303, 305, 278 S.E.2d 253, 255
(1981).
In the case sub judice, Massengill failed to present
evidence of a professional relationship between himself and
Knutson. Indeed, Massengill concedes that Knutson was never
directed to provide him with medical care or otherwise attend to
his needs. In fact, the record shows that Knutson was assigned
to work in the cancer/oncology unit--a practice area distinct
from where Massengill was being treated. Accordingly, Knutson
has failed to prove an essential element to his medical
malpractice claim, to wit, the existence of a professionalrelationship between himself and the health-care provider in this
case, Knutson.
We note that Massengill cites Johnson v. Amethyst Corp., 120
N.C. App. 529, 463 S.E.2d 397 (1995), in support of his argument
that a medical malpractice claim can be based upon sexual
advances made by a health care professional. That case, however,
is distinguishable. In Johnson, we stated that a patient who was
sexually assaulted by a clinical assistant while in an alcohol
and drug rehabilitation hospital could maintain a medical
malpractice claim against the hospital. Id. at 533-34, 463
S.E.2d at 400-01. The assailant in Johnson, however, was
specifically hired by the hospital as clinical assistant,
assigned to care for the victim and committed the unlawful acts
while performing medical tasks that he had been assigned to do.
Id, Therefore, the plaintiff in Johnson was able to demonstrate
a professional relationship between the health-care provider and
the patient--an element Massengill has been unable to prove here.
In sum, we hold that Massengill failed to present evidence
of a professional relationship between himself and the health-
care provider in this case, Knutson.
(See footnote 1)
Since a professionalrelationship must exist between the patient and a health care
provider to maintain a medical malpractice claim, we must affirm
the trial court's judgment holding that a medical malpractice
action may not be maintained against Knutson.
Affirmed.
Judges WALKER and HUNTER concur.
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