Appeal 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.
Douglas S. Harris for plaintiff-appellant.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by Deanna Davis Anderson, for defendant-appellee.
Dianne Atkins (plaintiff) appeals from the trial court's
decision to set aside an entry of default as well as the court's
grant of summary judgment in favor of Rodney A. Mortensen, M.D.
(defendant). We affirm the trial court's rulings in both
Plaintiff became a patient of defendant when she saw him on 13
June 2001 for constant and severe pain in her left knee. An MRIrevealed 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 plaintiff's 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.
In 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.
On 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's place of employment, The
Sports Medicine and Orthopaedic Center (SMOC), 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
(MAG) on 27 July 2004, and thereafter called MAG to notify them
of the lawsuit. However, MAG never received the summons andcomplaint, and therefore did not assign an attorney to file an
Plaintiff 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's first knowledge of such actions was when he received
the court calendar postmarked 21 September 2004 on which
plaintiff's 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.
Defendant 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's deposition, he ultimately concluded defendant's 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's condition. In light of this evidence,the trial court granted defendant's motion for summary judgment on
16 March 2006. Plaintiff appeals.
 Plaintiff first argues that the trial court erred in
setting aside the entry of default because defendant failed to make
the requisite showing of good cause 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 good cause under Rule 55(d) of the
North Carolina Rules of Civil Procedure. We disagree.
Rule 55(d) allows the court to set aside an entry of default
upon a showing of good cause. N.C. Gen. Stat. § 1A-1, Rule 55(d)
(2005). As plaintiff suggests, courts of this state have found
the degree of attention or inattention shown by the defendant to
be a particularly compelling factor 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
amenable to setting aside such entries only where a defendant
continued to monitor the case after referring the claim to his or
her insurer. Id
. [W]here a defendant merely passed the case to
the insurance company but took no further action, courts have been
less inclined to set aside an entry of default. Id
Indeed, on facts very similar to those here, this Court
refused to set aside the entry of default due to the defendant's
lack of attention to the claim filed against him. See Cabe v.
, 140 N.C. App. 250, 252-53, 536 S.E.2d 328, 330 (2000). InCabe
, 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's motion to set such entry aside due
to his inattention to the claim. Id
Although our opinion in Cabe
focused primarily on the
diligence of the defendant in assessing good cause, we have often
balanced the defendant's 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.
, 138 N.C. App. 153, 157, 530 S.E.2d 581, 584 (2000);
, 136 N.C. App. at 384-85, 524 S.E.2d at 590.
In 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 asindicated by the trial court's award of summary judgment to
defendant. Further, the multi-million dollar judgment and damage
to defendant's professional reputation are significantly greater
than the $25,000 in damages facing the defendant in Cabe
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's diligence cannot be determinative as to the issue of
setting aside the entry of default. Rather, we must weigh
defendant's diligence against any harm to plaintiff from the delay
or injustice to defendant if he is not allowed to defend the case.
The trial court's finding of good cause will not be disturbed
on appeal absent an abuse of discretion. 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's reasoning to
determine whether its finding of good cause in this specific case
was manifestly unsupported by reason or . . . so arbitrary that it
could not have been the result of a reasoned decision. Briley v.
, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998). Under the
circumstances here, and in light of the law's preference for
decisions on the merits, we conclude that the trial court did not
abuse its discretion in setting aside the entry of default.
Although 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 defendantwould 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
Accordingly, 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's finding of good cause.
Further, [t]he law generally disfavors default and 'any doubt
should be resolved in favor of setting aside an entry of default so
that the case may be decided on its merits.' Automotive Equipment
., 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 'should not be permitted to flout them with impunity,'
the significance of allowing every litigant to present his or herside 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's decision to set aside the entry of
 Plaintiff's 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's award of summary
judgment to defendant.
Summary judgment is appropriate when 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. N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2005). When a defendant moves for summary judgment and offers
evidence demonstrating that no genuine issue of material factexists 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
, 72 N.C. App. 306, 310, 324 S.E.2d 294, 298 (1985). We
review [the] trial court's order for summary judgment de novo
determine whether there is a 'genuine issue of material fact' and
whether [defendant] is 'entitled to judgment as a matter of law.'
Bolick v. County of Caldwell
, 182 N.C. App. 95, 97, 641 S.E.2d 386,
___ (2007) (quoting Summey v. Barker
, 357 N.C. 492, 496, 586 S.E.2d
247, 249 (2003)).
In an alleged medical negligence case, as here, a plaintiff
must offer evidence that establishes the following essential
elements: '(1) the standard of care [duty owed]; (2) breach of
the standard of care; (3) proximate causation; and (4) damages.'
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's medical records
did not contain any objective signs of complex regional painsyndrome, and therefore defendant's 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.
Even 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 plaintiff's 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
plaintiff's 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.
Because 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. The trial court did not err in setting aside the entry of
default or granting summary judgment to defendant. Therefore, we
Chief Judge MARTIN and Judge STROUD concur.
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