An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-485


Filed: 1 July 2003



v .                         Hoke County
                            No. 98 CVS 00456


    Appeal by plaintiffs from judgment entered 4 October 2001 by Judge B. Craig Ellis, and judgment entered 25 October 2001 by Judge Gregory A. Weeks, in Hoke County Superior Court. Heard in the Court of Appeals 11 February 2003.

    William S. Britt for the plaintiff appellants.

    Yates, McLamb, & Weyher, L.L.P., by Renee B. Crawford, Barbara B. Weyher and Dan J. McLamb, for the defendant appellees.

    ELMORE, Judge.

    On 2 October 1995, Suzanne Edwards (plaintiff) sought medical treatment at Owen Drive Surgical Clinic, d/b/a Raeford Hoke Family Care Center (Owen Drive). Her symptoms included the left side of her body being numb, a feeling of heaviness in her hands, a feeling of being drained of energy, headache, and slurred speech. She was treated by Dr. Mark Nelson (Dr. Nelson).    Dr. Nelson had a hand-written contract with Owen Drive and was paid by the hour. He was responsible for his own taxes and medical malpractice insurance, and he received no retirement benefits or paid time off from Owen Drive.
    Dr. Nelson made a diagnosis of transient ischemic attacks (TIA). He did not advise plaintiff to take an aspirin a day, or to stop taking birth control pills, or to stop smoking. He did not prescribe anticoagulant therapy. He ordered some tests and a CT scan. Plaintiff was not given a date and time for the CT scan at that time. She was told that the staff would call her and let her know when the CT scan would be scheduled. Over the course of the following week, plaintiff made several attempts to contact Owen Drive to schedule the CT scan. On that Friday, when plaintiff made a last attempt to get the CT scan scheduled, the staff person became “rude” and told her not to call again, that she would be contacted when the appointment was made.
    The CT scan was never scheduled or conducted. On 13 February 1996, plaintiff suffered a stroke. A CT scan conducted the same day showed that plaintiff had suffered “multiple infarcts.”
    Plaintiff and her husband filed suit against Dr. Nelson and Owen Drive for medical malpractice. The suit against Dr. Nelson was voluntarily dismissed pursuant to a settlement agreement. Owen Drive filed a motion for partial summary judgment on the issue of vicarious liability, which was granted by the trial court. Owen Drive subsequently filed a motion for summary judgment, arguing a lack of evidence establishing causation. The trial court grantedsummary judgment. From these summary judgments the plaintiffs appeal.

I.     Agency
    The plaintiff first assigns error to the trial court's order for partial summary judgment against the plaintiff concerning whether Dr. Nelson was an agent of Owen Drive. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits . . . 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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). On appeal, the standard of review is (1) whether there is a genuine issue of material fact and (2) whether the movant is entitled to judgment as a matter of law. See Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). The evidence presented is viewed in the light most favorable to the non-movant. See Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).
    The trial court found in its order that “the plaintiffs have produced no competent evidence of an agency, employee or servant relationship as to Dr. Nelson with this defendant and that no genuine issue of material fact exists as to the plaintiffs' allegation of the vicarious liability of this defendant for the negligence of Dr. Mark T. Nelson.” The evidence which plaintiffs put at the foundation of their argument on appeal is an admission by Dr. Nelson in an answer that he was an agent, servant, or employee of Owen Drive. However, “[a]dmissions by agents, madewhile doing acts within the scope of the agency, and relating to the business in hand, are admissible against the principal when such admissions may be deemed a part of the res gestae, but such admissions are not admissible to prove the agency; the agency must be shown aliunde before the agent's admission will be received.” Miller v. Cornell, 187 N.C. 550, 555-56, 122 S.E. 383, 386 (1924) (citations omitted). As a matter of law, the alleged agent's admission alone is not effective to establish the agency relationship against the principle. Because the assignment of error puts forth Dr. Nelson's admission as the basis for the error, we overrule this assignment.
II.     Proximate cause
    Plaintiffs also assign error to the trial court's entry of judgment as a matter of law on the issue of proximate cause. We review this assignment under the same standard of review articulated above for summary judgment.
    Plaintiffs alleged in the complaint that she sustained injury as “a direct and proximate result” of the negligence of the defendants, collectively and individually. On appeal, the plaintiffs argue from the deposition of Dr. Mark J. Albert (Dr. Albert), one of the seven medical doctors whose depositions were excerpted and attached to the defendant Owen Drive Surgical Clinic's motion for summary judgment. Dr. Albert's testimony is the only testimony referred to in support of the plaintiffs' contention that some evidence of proximate cause was before the trial court. Dr. Albert testified:        Q.    What do you need to see on the MRI or the CT scan to say that what they had was a TIA and not a stroke?
        A.    [Dr. Albert] Again, most people when they come in with a TIA, when you examine them, their symptoms will have gone away. By definition it's a transient event. And a CT scan will typically be negative for that acute event. Although, it may have showed something that happened in the past.

He further testified:

        Q.    All right. You had said that when a person has a TIA -- 15 to 20 percent of those that have strokes have a TIA. But then those that -- of those that have a TIA, a high percentage, or a percentage of those, go on to have strokes?
        A.    Correct.
        Q.    What percentage is that?
        A.    It's about 25 to 30 percent of those with a TIA will go on to have a stroke. Now, that's with a single TIA.
        Q.    Yes, sir.
        A.    If you have more than one TIA, or a pattern called crescendo TIA's, meaning that you're having more than one, they're coming frequently, they're lasting longer, then the risk of having a stroke in that setting goes up to 50 to 75 percent.

The plaintiffs' brief also cites a portion of Dr. Albert's deposition which indicates that if the proper work up had been done and an aspirin a day had been diagnosed then, more likely than not, the stroke would not have occurred. This statement was actually part of a compound question never directly addressed by Dr. Albert, and not part of his testimony. No other testimony in the record suggests that the stroke was caused for a particular reason. Most of the expert testimony is in accord that, even if there had been a CT scan, it would probably have not reflected the TIA, and thatthe cause of the stroke remains uncertain. Plaintiffs in their brief, and the record on appeal, bring to light no evidence that Ms. Edwards' stroke was proximately caused by any action on the part of appellee Owen Drive Surgical Clinic. Therefore, taking the evidence in a light most favorable to the plaintiffs, and giving them the benefit of every inference, we hold that no evidence of proximate cause has been brought.
    The order of the trial court granting judgment as a matter of law is therefore also affirmed.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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