An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 December 2005
SANDRA DALE HELTON,
Administratrix of the Estate
of Garland Ray Sawyer,
v. N.C. Industrial Commission
N.C. DEPARTMENT OF CORRECTION,
Appeal by plaintiff from a Decision and Order entered 16
November 2004 by the North Carolina Industrial Commission. Heard
in the Court of Appeals 13 October 2005.
The Moore Law Firm, by George W. Moore, for plaintiff-
Attorney General Roy Cooper, by Assistant Attorney General
Donna B. Wojcik, for defendant-appellee.
Plaintiff Sandra Dale Helton appeals from a Decision and Order
of the North Carolina Industrial Commission dismissing her claim
for damages under the N.C. Tort Claims Act. We affirm.
The relevant facts are summarized as follows: In 1999 Garland
Sawyer (Sawyer) pled guilty to involuntary manslaughter and was
sentenced to 13 to 16 months imprisonment in the North Carolina
Department of Correction (DOC). In July 1999 Sawyer was housed at
Buncombe Correction Center (BCC). At around 9:00 p.m. on 3 July
1999, he complained to BCC correctional officers that he wasexperiencing chest pain, chest pressure, and pain radiating down
his left arm. The BCC officer in charge, Sergeant Richard Terry,
called 911, and Sawyer was taken by ambulance to Mission-St.
Joseph's Hospital in Asheville. At the hospital, he was treated by
Dr. Gail Pignatiello, M.D., who performed several tests, including
an EKG, chest x-ray, and other cardiac tests. Dr. Pignatiello
diagnosed Sawyer with acute chest pain, resolved and noted that
acid reflux was likely involved. Discharge instructions advised
Sawyer to avoid fried or fatty foods, prescribed the medication
Prilosec, and referred him to the BCC physician for follow-up.
Sawyer was returned to BCC at around 1:30 a.m. on 4 July 1999;
about an hour and a half later, he complained of pain in his chest
and left wrist. The officer in charge reviewed the hospital
instructions indicating that Sawyer had acid reflux, then gave him
an extra pillow and a non-prescription antacid. For the balance of
the night Sawyer appeared to rest comfortably, and made no other
complaints to correctional officers on duty. When the BCC work
shifts changed, the incoming correctional officers were told that
Sawyer had gone to the hospital with chest pain and had been
diagnosed with acid reflux.
On 4 July 1999 Sawyer was visited by plaintiff and two other
family members. Plaintiff approached Sergeant Terry during the
visit and expressed her opinion that Sawyer was sick and needed
medical attention. Sergeant Terry told plaintiff that if Sawyer
felt ill, he need only alert any staff member and he would be
brought to Terry's office. However, Sawyer did not bring anyhealth complaints to Sergeant Terry that day. Other correctional
officers who either spoke with or observed Sawyer during the day of
4 July testified uniformly that Sawyer appeared normal and
expressed no health complaints. Around 7:30 p.m. a correctional
officer found Sawyer unconscious in the dorm area and alerted
Sergeant Terry, who called 911. The correctional officers
administered CPR, and emergency and hospital medical personnel
attempted to resuscitate Sawyer; however, Sawyer never regained
consciousness and was pronounced dead at around 8:30 p.m. on 4 July
In April 2001 plaintiff filed a claim for damages with the
North Carolina Industrial Commission, pursuant to N.C. Gen. Stat.
§ 143-291 et seq., the N.C. Tort Claims Act. Her claim was
accompanied by an affidavit alleging that Sawyer's death was caused
by the negligence of certain BCC correctional officers, DOC
administrators, and DOC medical personnel. The case was heard
before Industrial Commission Deputy Commissioner George Hall in
January 2003. On 21 May 2003 Hall issued a Decision and Order
finding that, although the named DOC employees had not been
negligent in their care of Sawyer, Dr. Pignatiello was negligent by
releasing Sawyer without further observation and testing. The
Commissioner also found that Dr. Pignatiello's negligence was the
proximate cause of [Sawyer's] death and that Dr. Pignatiello was
as a matter of law an agent of the [DOC]. On this basis,
Commissioner Hall concluded that defendants were negligent, and
awarded plaintiff damages of $500,000. Defendants appealed to the Full Commission, which issued its
Decision and Order on 16 November 2004. The Commission found that
Dr. Pignatiello was not an agent or employee of the DOC. However,
the Commission agreed with the deputy commissioner that the named
defendants had not been negligent, and therefore dismissed
plaintiff's claim. From this Decision and Order plaintiff appeals.
Standard of Review
The standard of review for an appeal from the
Full Commission's decision under the Tort
Claims Act shall be for errors of law only
under the same terms and conditions as govern
appeals in ordinary civil actions, and the
findings of fact of the Commission shall be
conclusive if there is any competent evidence
to support them. N.C. Gen. Stat. § 143-293
(2003). As long as there is competent
evidence in support of the Commission's
decision, it does not matter that there is
evidence supporting a contrary finding. The
court's duty goes no further than to determine
whether the record contains any evidence
tending to support the finding. Thus, when
considering an appeal from the Commission, our
Court is limited to two questions: (1) whether
competent evidence exists to support the
Commission's findings of fact, and (2) whether
the Commission's findings of fact justify its
conclusions of law and decision.
Simmons v. Columbus County Bd. of Educ., __ N.C. App. __, __, 615
S.E.2d 69, 72 (2005) (quoting Simmons v. N.C. Dept. of
Transportation, 128 N.C. App. 402, 405-06, 496 S.E.2d 790, 793
(1998), and Anderson v. Construction Co., 265 N.C. 431, 434, 144
S.E.2d 272, 274 (1965)).
Plaintiff herein sought damages for negligence. 'Actionable
negligence is the failure to exercise that degree of care which a
reasonable and prudent person would exercise under similarconditions.' Tise v. Yates Construction Co., 345 N.C. 456, 459-
60, 480 S.E.2d 677, 680 (1997) (quoting Hart v. Ivey, 332 N.C. 299,
305, 420 S.E.2d 174, 177-78 (1992)). 'To recover damages for
actionable negligence, a plaintiff must establish (1) a legal duty,
(2) a breach thereof, and (3) injury proximately caused by such
breach.' Id. at 460, 480 S.E.2d at 680 (quoting Mozingo v. Pitt
County Memorial Hosp., 331 N.C. 182, 415 S.E.2d 341, 344 (1992)).
Under the Tort Claims Act, the State is liable for:
the negligence of any officer, employee,
involuntary servant or agent of the State
while acting within the scope of his office,
employment, service, agency or authority,
under circumstances where the State of North
Carolina, if a private person, would be liable
to the claimant in accordance with the laws of
N.C. Gen. Stat. § 143-291 (2003). Additionally, under the Tort
Claims Act: 'The burden of proof as to [negligence is] on the
plaintiff. Evidence is usually not required in order to establish
and justify a finding that a party has failed to prove that which
he affirmatively asserts. It usually occurs and is based on the
absence or lack of evidence.' Drewry v. N.C. Dept. of Transp.,
168 N.C. App. 332, 337, 607 S.E.2d 342, 346 (quoting Bailey v. N.C.
Dept. of Mental Health, 2 N.C. App. 645, 651, 163 S.E.2d 652, 656
(1968)), disc. review denied, 359 N.C. 410, 612 S.E.2d 318 (2005).
Plaintiff argues in her appeal that the Industrial Commission
committed reversible error by (1) failing to conclude as a matter
of law that defendants had a nondelegable duty to provide adequate
medical services to Sawyer; (2) failing to make certain findingsof fact in addition to those set out in the record; and (3)
failing to conclude that Sawyer's death was proximately caused by
defendants' negligence. At the outset, we note the necessity of
distinguishing between legal issues presented by the instant appeal
and issues not properly before us.
In her appellate brief, plaintiff correctly states the general
rule that the DOC has a nondelegable duty to provide medical care
for inmates[.] Medley v. N.C. Department of Correction
, 330 N.C.
837, 845, 412 S.E.2d 654, 659 (1992). We conclude, however, that
the instant appeal does not require our interpretation of DOC's
duty to provide its inmates with medical care. The parties
essentially agree both that the DOC is generally responsible for an
inmate's medical care, and that on 4 July 1999 Sawyer needed
medical care. The issue
is whether or not the failure to provide
timely medical care to Sawyer was due to DOC's negligence, or was
simply the result of an unfortunate set of circumstances. Thus,
the question is not
whether the DOC is responsible for providing
medical care to prisoners, but whether the evidence established
that defendants negligently breached this duty.
Plaintiff also argues that, because the State had a
nondelegable duty to provide medical care, Dr. Pignatiello was, as
a matter of law, an agent of the Defendant-Appellee[.] We
conclude that, for the following reasons, the instant appeal does
not raise the question of Dr. Pignatiello's status with respect to
Pursuant to N.C. Gen. Stat. § 143-297 (2003), a claim under
the Tort Claims Act must include, inter alia,
(2) [t]he name of
the department, institution or agency of the State against which
the claim is asserted, and the name of the State employee upon
whose alleged negligence the claim is based. G.S. § 143-297(2).
'The purpose of G.S. 143-297(2), requiring a claimant under the
Tort Claims Act to name in the affidavit the negligent employee of
the State agency, is to enable the agency to investigate the
employee actually involved rather than all employees. Smith v.
N.C. Dept. of Transp.
, 156 N.C. App. 92, 99, 576 S.E.2d 345, 351
(2003) (quoting Northwestern Distributors, Inc. v. North Carolina
Dept. Of Transp.
, 41 N.C. App. 548, 551-52, 255 S.E.2d 203, 206
Plaintiff's claim names certain DOC correctional officers,
administrators, and DOC health care providers as the negligent
State employees. She alleges that the defendants were negligent in
failing to return Sawyer to the hospital after his initial visit on
3 July 1999. She does not name Dr. Pignatiello. Further, she
asserts on appeal that her essential claim is that the
Defendant-Appellee failed to provide any medical care for inmate
Sawyer or to return him to the hospital when his condition worsened
. . . not that medical care rendered was not in compliance with the
standard of care[.] And plaintiff emphasizes that she did not
allege medical malpractice by a health care provider[;] did not
offer any evidence of medical malpractice by a health care
provider[; and] did not allege that medical care was not inaccordance with the standard of care[.] Since plaintiff does not
allege that Dr. Pignatiello was negligent, the adequacy of
Pignatiello's medical treatment is irrelevant. Moreover, because
Dr. Pignatiello's medical treatment is not an issue
in this case,
it is irrelevant whether or not Dr. Pignatiello was an agent of
the DOC. Therefore, we will not address plaintiff's arguments on
We conclude that the Industrial Commission was not required to
make a conclusion of law pertaining either to the State's
nondelegable duty to provide medical care, or to the relationship
between Dr. Pignatiello and the DOC. This assignment of error is
Plaintiff argues next that the Industrial Commission erred by
failing to make certain findings of fact. We disagree.
Under N.C.R. Civ. P. 52(a)(1), [i]n all actions tried upon
the facts without a jury . . . the court shall find the facts
specially and state separately its conclusions of law thereon and
direct the entry of the appropriate judgment. Our Supreme Court
has noted that 'while Rule 52(a) does not require a recitation of
the evidentiary and subsidiary facts required to prove the ultimate
facts, it does require specific findings of the ultimate facts
established by the evidence, admissions and stipulations which are
determinative of the questions involved in the action and essential
to support the conclusions of law reached.' RPR & Assocs. v.
University of N.C.-Chapel Hill
, 153 N.C. App. 342, 355-56, 570
S.E.2d 510, 519 (2002) (quoting Quick v. Quick
, 305 N.C. 446, 452,290 S.E.2d 653, 658 (1982)).
Rule 52 applies to cases heard by the
Industrial Commission under the Tort Claims Act. See, e.g., Parker
v. State Department of Transp.
, 122 N.C. App. 279, 468 S.E.2d 589
A trial court's duty pursuant to N.C. Gen. Stat. § 1A-1, Rule
52 to find facts and state its conclusions separately 'merely
[serves] to provide a basis for appellate review.' The appellate
review this Court must be able to conduct consists of a
determination of whether (1) the trial court's findings of fact are
supported by competent evidence and (2) the trial court's
conclusions of law are supported by its findings of fact.
Department of Transp. v. Byerly
, 154 N.C. App. 454, 459, 573 S.E.2d
522, 525 (2002) (quoting Winston-Salem Wrecker Ass'n v. Barker
N.C. App. 114, 119, 557 S.E.2d 614, 618 (2001)). Thus, in making
findings of fact, the trial court is required only to make brief,
pertinent and definite findings and conclusions about the matters
in issue[.] Fortis Corp. v. Northeast Forest Products
, 68 N.C.
App. 752, 753, 315 S.E.2d 537, 538 (1984) (citation omitted).
We next consider whether plaintiff's suggested findings of
fact were required in order for us to review the Commission's
Decision and Order. Plaintiff first asserts that the Commission
should have found that Dr. Pignatiello advised Sawyer to return to
the hospital if he felt worse or had problems and that the
correctional officers at BCC were not told of this directive.
Plaintiff relies heavily on the assertion that the absence of this
instruction to correctional officers was significant. We disagree,however, and conclude that a recommendation to bring Sawyer back to
the hospital if he had problems or got worse is too vague to
provide any meaningful guidance as to symptoms indicating a need
for medical treatment. The presence or absence of a hospital
discharge sheet noting that Sawyer should come back to the hospital
if he had problems would not have made any difference in the
correctional officers' ability to meet their duty of care towards
Sawyer, and thus is not a part of the analysis of plaintiff's
negligence claim. Accordingly, the Industrial Commission was not
required to make findings of fact on this issue.
Plaintiff next asserts that the Industrial Commission was
required to make a finding of fact that Sawyer was very ill and did
not receive necessary medical treatment. As discussed above, the
issue is not
whether Sawyer should have gotten medical treatment,
but whether defendants were negligent
in their failure to recognize
how ill he was. We conclude that this finding, and numerous
additional ones suggested by plaintiff, were not required. The
relevant assignments of error are overruled.
We have considered plaintiff's remaining assignments of error
and find them to be without merit. The order of the Industrial
Judges McCULLOUGH and ELMORE concur.
Report per Rule 30(e).
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