Appeal by Plaintiff from order entered 10 February 2006 by
Judge John O. Craig, III in Superior Court, Guilford County. Heard
in the Court of Appeals 15 March 2007.
Kennedy, Kennedy, Kennedy & Kennedy, L.L.P., by Harvey L.
Kennedy and Harold L. Kennedy, III, for Plaintiff-Appellant.
Sharpless & Stavola, P.A., by Joseph P. Booth, III, for
Betty L. Grant (Plaintiff), Executrix of the Estate of Tommy
J. Grant (decedent), filed an amended complaint against High Point
Regional Health System (Defendant) on 4 June 2004. Plaintiff
alleged in the complaint that Defendant owned and operated High
Point Regional Hospital (the hospital). Plaintiff further alleged
the following: Decedent went to the hospital's emergency room on or
around 13 September 2000 complaining of excruciating knee pain. X-rays were taken of decedent's knee. However, "by the time that
[decedent's] knee cancer was finally diagnosed by any physician(s),
[decedent's] cancer was substantially advanced and his situation
was terminal." Decedent died on 17 February 2003.
Patti L. Holt, one of Plaintiff's attorneys, sent a letter to
the hospital on 31 August 2003 stating that she represented
decedent's estate with respect to a potential medical negligence
claim. The letter also requested "emergency room and radiology
records and films generated during the period of June 1, 2000 to
December 31, 2000." Defendant did not respond to this request.
Plaintiff's attorney then spoke by telephone with a hospital
employee named "Rose" on 15 September 2003. Rose told Plaintiff's
attorney that decedent's x-rays from 13 September 2000 "were
present" at the hospital. Rose requested that Plaintiff's attorney
send another medical release form because the first release had not
been forwarded to Rose. Plaintiff's attorney sent another release.
Plaintiff's attorney did not receive decedent's x-rays or records
by 23 September 2003, and she called Rose to inquire about the
records. Rose told Plaintiff's attorney that she could not find
In the following months, Plaintiff's attorney tried,
unsuccessfully, to obtain decedent's x-rays and records from
Defendant. On 14 January 2004, Plaintiff's attorney sent Defendant
a subpoena to produce decedent's x-rays and records. Defendant
responded on 20 January 2004 that the x-rays were "not in
[decedent's] folder" and "had not been checked out." Plaintiff further alleged that
the failure of the hospital to maintain the x-
ray film taken on September 13, 2000 has
effectively precluded . . . Plaintiff from
being able to successfully prosecute a medical
malpractice action against . . . Defendant
hospital and others. Furthermore, at this
time the missing x-rays have prevented
Plaintiff's counsel from securing the Rule
9(j) certification. That . . . Defendant
Hospital was required to keep, maintain and
preserve all medical records, including x-
rays, for 11 (eleven) years pursuant to
N.C.A.C. 10A: N.C.A.C. 13B.3903, and the rules
and regulations of the Joint Commission on
Accreditation of Healthcare Organizations
Plaintiff also alleged that Defendant "intentionally and/or
recklessly destroyed the x-ray film of . . . [d]ecedent . . . after
[Defendant] was placed on notice of a potential medical malpractice
claim against . . . Defendant hospital on August 31, 2003." In the
alternative, Plaintiff alleged that Defendant was negligent and
careless in failing to maintain and preserve the x-rays. Plaintiff
alleged Defendant's conduct amounted to spoliation and common law
obstruction of justice. Plaintiff also alleged that as a direct
and proximate result of Defendant's spoliation and common law
obstruction of justice, "Plaintiff has suffered actual damages,
including but not limited to all damages she could have recovered
from wrongful death and medical negligence _ i.e.: medical
expenses, funeral expenses, pain and suffering, loss of services,
protection, care and assistance, society, companionship, comfort
and guidance, kindly offices and advice." Plaintiff sought
compensatory and punitive damages.
Defendant filed an answer on 24 June 2004 and a motion todismiss Plaintiff's complaint on 11 January 2006. The trial court
entered an order dismissing Plaintiff's complaint on 10 February
2006. Plaintiff appeals.
The standard of review of an order granting a motion to
dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) is
"whether, as a matter of law, the allegations of the complaint,
treated as true, are sufficient to state a claim upon which relief
may be granted under some legal theory, whether properly labeled or
not." Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840
(1987). "In ruling upon such a motion, the complaint is to be
liberally construed, and the court should not dismiss the complaint
'unless it appears beyond doubt that [the] plaintiff could prove no
set of facts in support of his claim which would entitle him to
relief.'" Holloman v. Harrelson, 149 N.C. App. 861, 864, 561
S.E.2d 351, 353 (quoting Dixon v. Stuart, 85 N.C. App. 338, 340,
354 S.E.2d 757, 758 (1987)), disc. review denied, 355 N.C. 748, 565
S.E.2d 665 (2002).
 Plaintiff argues the trial court erred by dismissing her
claim for common law obstruction of justice. In In re Kivett
N.C. 635, 309 S.E.2d 442 (1983), our Supreme Court recognized that
obstruction of justice is a common law offense in North Carolina.
at 670, 309 S.E.2d at 462. "'At common law it is an offense to
do any act which prevents, obstructs, impedes or hinders public or
legal justice. The common law offense of obstructing public
justice may take a variety of forms[.]'" Id.
(quoting 67 C.J.S.Obstructing Justice
§§ 1, 2 (1978)). The Supreme Court also
recognized that Article 30 of Chapter 14 of the General Statutes,
which sets forth specific crimes under the heading of Obstructing
, does not abrogate the common law offense of obstruction of
Furthermore, "[t]here is no indication that the
legislature intended Article 30 to encompass all aspects of
obstruction of justice." Id.
Plaintiff argues, and we agree, that Henry v. Deen
, 310 N.C.
75, 310 S.E.2d 326 (1984), is analogous to the present case. In
, the plaintiff was an administrator of a decedent's estate
who sued two physicians and a physician's assistant for the
wrongful death of the decedent and for civil conspiracy. Id.
77, 310 S.E.2d at 328. The plaintiff alleged the following. The
decedent experienced severe chest pain and other ailments and went
to the emergency room around 30 June or 1 July 1979. Id.
310 S.E.2d at 329. The emergency room physician diagnosed the
decedent with pneumonia and prescribed medicine for the decedent.
However, after reviewing an x-ray report that indicated
possible serious cardiac deterioration, the emergency room
physician instructed the decedent to see the defendant physician
at 78, 310 S.E.2d at 329. The decedent visited Deen's
office on 3 July 1979. Deen and his physician's assistant, Hall,
urged the decedent to continue taking medicine for pneumonia. Id.
The decedent returned for a follow-up visit on 6 July 1979 and
Hall, without consulting Deen, told the decedent to continue taking
the medicine for pneumonia. Id.
The plaintiff alleged that thedecedent "suffered from arteriosclerosis, coronary atheromatosis
and coronary thrombosis, the combination of which, if undiagnosed
and untreated, leads inevitably to the death of heart tissue and
possible cardiac arrest." Id.
at 78-79, 310 S.E.2d at 329. The
plaintiff also alleged that the decedent's symptoms made a medical
diagnosis of heart disease "compelling and obvious." Id.
310 S.E.2d at 329. The decedent died on 8 July 1979 of a massive
myocardial infarction as a result of heart disease. Id.
With respect to the claim for civil conspiracy, the plaintiff
specifically alleged that Deen and Hall agreed to create,
and did create, false and misleading entries in the decedent's
medical chart and that "the defendants obliterated another entry in
the chart concerning the true facts of the diagnosis and treatment
of [the decedent]." Id.
at 87, 310 S.E.2d at 334. The plaintiff
further alleged that Deen and Hall conspired with the defendant
physician Niazi to conceal the decedent's actual medical record and
to create a false medical record. Id.
The plaintiff further
alleged that Niazi agreed to produce the false document to anyone
who inquired about Niazi's participation in the decedent's
The plaintiff sought actual damages for wrongful
death, and punitive damages for wrongful death and civil
conspiracy, from Deen and Hall. Id.
at 79, 310 S.E.2d at 330. The
plaintiff also sought punitive damages for civil conspiracy from
The defendants in Henry
moved to dismiss the plaintiff's
original complaint, and the plaintiff filed a motion to amend thecomplaint, along with a proposed amended complaint. Id.
proposed amended complaint, the plaintiff alleged that Hall
consulted with Niazi at the decedent's follow-up visit on 6 July
1979 and that, inter alia
, Niazi attempted to diagnose and advise
treatment for the decedent over the telephone. Id.
at 79-80, 310
S.E.2d at 330. In the proposed amended complaint, the plaintiff
also added a claim against Niazi for actual and punitive damages
for wrongful death, and a claim against Deen, Hall and Niazi for
actual damages as a result of the civil conspiracies. Id.
310 S.E.2d at 330.
The trial court dismissed the plaintiff's claims for civil
conspiracy and for punitive damages for wrongful death against
Deen, Hall, and Niazi. Id.
The trial court also dismissed the
wrongful death claim against Niazi and denied the plaintiff's
motion to amend. Id.
On appeal, our Court upheld the dismissal of
the punitive damages claims against Hall and Deen and also upheld
the dismissal of the civil conspiracy claims against the
However, our Court reversed the trial court's
denial of some of the plaintiff's proposed amendments. Id.
Our Supreme Court reversed the decision of our Court and held
that the plaintiff's allegations of civil conspiracy, "if found to
have occurred, would be acts which obstruct, impede or hinder
public or legal justice and would amount to the common law offense
of obstructing public justice." Id.
at 87, 310 S.E.2d at 334.
Therefore, our Supreme Court held that the plaintiff's complaint
stated a claim for civil conspiracy and that the plaintiff'samended complaint, if allowed by the trial court on remand, added
the required allegation of injury. Id.
In the present case, Defendant contends that Henry
inapplicable because the cause of action at issue in Henry
civil conspiracy, not obstruction of justice. However, our Supreme
Court pointed out in Henry
[i]n civil actions for recovery for injury
caused by acts committed pursuant to a
conspiracy, this Court has stated that the
combination or conspiracy charged does no more
than associate the defendants together and
perhaps liberalize the rules of evidence to
the extent that under the proper circumstances
the acts of one may be admissible against all.
The gravamen of the action is the resultant
injury, and not the conspiracy itself.
at 86-87, 310 S.E.2d at 334 (internal citations omitted). Our
Supreme Court further stated that to prove a civil conspiracy,
there must be a wrongful act resulting in injury that is committed
pursuant to a conspiracy. Id.
at 87, 310 S.E.2d at 334.
Therefore, in Henry
, the wrongful acts necessary to prove
conspiracy were the acts constituting obstruction of justice. Id.
Accordingly, as the acts constituting obstruction of justice
underlying the civil conspiracy in Henry
were similar to
Defendant's alleged actions in the present case, Henry
Plaintiff in the present case alleged, as did the plaintiff in
, that Defendant destroyed the medical records of decedent.
Plaintiff alleged Defendant's actions effectively precluded
Plaintiff from obtaining the required Rule 9(j) certification.
Plaintiff further alleged that Defendant's actions "obstructed,impeded and hindered public or legal justice in that the failure
of . . . Defendant . . . to preserve, keep and maintain the x-ray
film described above has effectively precluded . . . Plaintiff from
being able to successfully prosecute a medical malpractice action
against . . . Defendant . . . and others." Plaintiff alleged,
that Defendant's conduct constituted common law
obstruction of justice. We hold that such acts by Defendant, if
true, "would be acts which obstruct, impede or hinder public or
legal justice and would amount to the common law offense of
obstructing public justice." See Henry
, 310 N.C. at 87, 310 S.E.2d
at 334. Plaintiff's complaint stated a cause of action for common
law obstruction of justice.
Defendant contends that Plaintiff's allegations of proximate
causation and damages are too speculative. However, at the Rule
12(b)(6) stage, we look only to whether the allegations in a
complaint, taken as true, state a legally cognizable claim.
, 85 N.C. App. at 670, 355 S.E.2d at 840. In Henry
plaintiff's original complaint did not seek actual damages
resulting from the civil conspiracy. Henry
, 310 N.C. at 79, 310
S.E.2d at 330. However,
our Supreme Court held that if the trial
court, on remand, allowed the plaintiff's amended complaint, which
did allege actual damages arising from the civil conspiracy,
Plaintiff's claim was legally sufficient to withstand a motion to
at 90, 310 S.E.2d at 336.
In the present case, Plaintiff sufficiently alleged actual
damages in her complaint as follows: "Plaintiff has suffered actualdamages, including but not limited to all damages [Plaintiff] could
have recovered from wrongful death and medical negligence _ i.e.:
medical expenses, funeral expenses, pain and suffering, loss of
services, protection, care and assistance, society, companionship,
comfort and guidance, kindly offices and advice." It is immaterial
that the specific actual damages sought by Plaintiff in the present
case are different from the specific actual damages sought by the
plaintiff in Henry
Defendant further contends that Plaintiff failed to allege
that Defendant's actions directly impacted a judicial proceeding
brought by Plaintiff. A similar argument was rejected in Jackson
v. Blue Dolphin Communications of N.C.
, 226 F. Supp. 2d 785
(W.D.N.C. 2002), which we find persuasive. In Jackson
plaintiff alleged that the defendants attempted to force her to
sign a false affidavit which would have been used in a civil suit
later filed by one of the plaintiff's colleagues. Id.
When the plaintiff refused to sign the affidavit, the defendants
terminated her employment. Id.
The Court held that the
"[p]laintiff's allegations [were] sufficient to show that [the]
[d]efendants attempted to impede the legal justice system through
the false affidavit." Id.
The defendants argued that the
plaintiff did not have standing "because a suit involving her was
not pending at the time of the alleged obstruction of justice."
However, the Court held there was no requirement that a suit
be pending for the plaintiff to have a valid claim for obstruction
of justice. Id.
at 794-95. In so holding, the Court relied onBurgess v. Busby
, 142 N.C. App. 393, 544 S.E.2d 4, disc. review
, 354 N.C. 351, 553 S.E.2d 679, reh'g denied
355 N.C. 224, 559 S.E.2d 554 (2001), where the defendant had
retaliated against jurors who had previously found a colleague of
the defendant liable for medical malpractice. Id.
at 794 (citing
, 142 N.C. App. at 396-98, 544 S.E.2d at 6-7). However,
although the actions of the defendant in Burgess
occurred after the
completion of the first trial, but before the filing of the
obstruction of justice claim, the plaintiffs had standing to bring
the obstruction of justice claim. Id.
, 142 N.C.
App. at 396-98, 544 S.E.2d at 6-7).
In the present case, Plaintiff alleged that Defendant's
actions prevented her from obtaining the required Rule 9(j)
certification and from successfully prosecuting a medical
negligence action against Defendant and others. Therefore,
Defendant's alleged actions directly prevented, obstructed, or
impeded public or legal justice by precluding the filing of a civil
Defendant also raises concerns that by recognizing a cause of
action for common law obstruction of justice in the present case,
our Court would be recognizing that a cause of action could be
brought against any third party that fails to produce documents or
other matter requested by a potential litigant. We are not so
concerned. Plaintiff alleged that Defendant's actions "precluded
. . . Plaintiff from being able to successfully prosecute a medical
malpractice action against . . . Defendant . . . and others." Aswe have just held, Plaintiff sufficiently alleged that Defendant's
conduct prevented, obstructed, or impeded public or legal justice.
For all the reasons stated above, we hold the trial court erred by
dismissing Plaintiff's claim for common law obstruction of justice.
Therefore, we reverse the dismissal of this claim.
 Plaintiff also argues the trial court erred by dismissing
her claim for common law spoliation. In support of her argument,
Plaintiff relies upon Dulin v. Bailey
, 172 N.C. 608, 90 S.E. 689
(1916). Plaintiff argues that in Dulin
, our Supreme Court
recognized a cause of action for spoliation that is applicable in
the present case. We disagree.
, the plaintiff brought a tort action against the
defendants, alleging they conspired and injured the plaintiff by
removing from a will a legacy to the plaintiff and others. Id.
608, 90 S.E. at 689. Our Supreme Court stated: "Though this action
seems to be of the first impression in this [S]tate, and is
doubtless a very unusual one, there is foundation and reason for
the action upon well-settled principles of law, and we are not
entirely without precedent." Id.
at 609, 90 S.E. at 689. The
precedents upon which our Supreme Court relied were limited to the
context of wills. Id.
at 609, 90 S.E. at 689-90. However, our
Supreme Court held that "[e]ven if there had been no precedent, it
would seem that upon the principle of justice that there is 'no
wrong without a remedy[,]' the plaintiff is entitled to maintain
this action if, as she alleges, the defendants conspired anddestroyed the subsequent will in which the legacy was left her."
at 609, 90 S.E. at 690.
For the reasons that follow, we hold that Dulin
control the present case. First, in the ninety years since it was
has never been cited in this State for its holding
relating to a tort for spoliation, either in the context of wills
or in any other context.
, the only case law related to
has dealt with the inference arising in ongoing
litigation from the intentional destruction of evidence. See,
e.g., Red Hill Hosiery Mill, Inc. v. MagneTek, Inc.
, 138 N.C. App.
70, 78, 530 S.E.2d 321, 328, disc. review denied
, 353 N.C. 268, 546
S.E.2d 112 (citation omitted) (2000) (stating that "a party's
intentional destruction of evidence in its control before it is
made available to the adverse party can give rise to an inference
that the evidence destroyed would injure its (the party who
destroyed the evidence) case. This principle is known as
'spoliation of evidence.'"). Second, the precedent upon which our
Supreme Court relied in making its decision in Dulin
was limited to
the context of wills. This demonstrates the limited nature of the
Supreme Court's holding. Third, it is clear that any wrong alleged
by Plaintiff in the present case is not without a remedy because we
have already held that Plaintiff stated a cause of action for
common law obstruction of justice. Therefore, we affirm the trial
court's dismissal of Plaintiff's claim for common law spoliation.
Reversed and remanded in part; affirmed in part.
Judges ELMORE and STEPHENS concur.
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