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Panel overturns judge; rules against ARMC in DNR case

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Hospital didn’t attempt resuscitation despite family’s standing instructions to do so; he died at hospital prior to scheduled surgery in 2018

The North Carolina Court of Appeals has overturned a decision by a visiting superior court judge to dismiss a medical negligence suit against Alamance Regional Medical Center in September 2021.

The state’s second-highest court has concluded that the medical negligence claim didn’t require expert certification, contrary to a September 2021 ruling by Kevin Bridges, a visiting superior court judge from Stanly County who presided over the trial in Alamance County superior court.

The lawsuit was filed by the estate of Henry Wyer, who died after being admitted to ARMC in June 2018 – for the second time in as many months – and his daughter, Benita Wyer, who subsequently served as the co-administrator for his estate.

Henry Wyer and Benita Wyer met with his doctors at ARMC on May 11, 2018, prior to a scheduled surgery, based on the case background outlined in the opinion issued Friday by the Court of Appeals.

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During their initial visit with his medical team, Henry Wyer and his daughter signed “Medical Orders for Scope of Treatment,” or MOST form, outlining Henry Wyer’s desire to be resuscitated – and/or placed on life support – if needed, the case background states. He was later readmitted to the hospital on June 14, 2018, but no additional MOST was form was signed at that time, the case background states.

Writing for the Appeals Court, judge Hunter Murphy notes, “The record on appeal in this case does not disclose much,” including the “scope of the surgery, how it went, or the decedent’s prognosis following the surgery.”

“It is unclear why [Henry Wyer] was readmitted,” Murphy writes.

On June 14, 2018, the staff at ARMC entered a Do Not Resuscitate (DNR) order in Henry Wyer’s medical record. Four days after he was readmitted, Henry Wyer “went into a cardiopulmonary episode…and died that day when [ARMC’s] staff abided by the terms of the DNR, not performing CPR or otherwise attempting to resuscitate” Wyer, the case background states.

In her suit, Brenda Wyer contended that the “MOST” form she had signed a month earlier, in May 2018, directing her father to be resuscitated and/or placed on life support in the event of an emergency, was still in effect. Brenda Wyer contended that – despite the form she and her father signed in May 2018 – the staff at ARMC improperly “unilaterally entered” and followed an unauthorized DNR order on June 14, 2018. [Henry Wyer, Jr., then 75 and an Elon resident, died in the hospital on June 18, 2018, according to an obituary published at the time by the funeral home that handled his final arrangements.]

In September 2021, Bridges, the visiting superior court judge, granted the hospital’s motion to dismiss the suit, based on the hospital’s claim that Benita Wyer had failed to assert that an expert had reviewed her father’s medical care and was willing to testify that it failed to meet the applicable standard of care, according to the factual background.

On appeal, Brenda Wyer contended that Bridges had erroneously dismissed her first claim of negligence because she had failed to provide expert certification.

The Appeals Court agreed, reasoning that while the state’s Rules of Civil Procedure typically require “expert certification” (or testimony regarding the standard of care), that isn’t necessarily required for medical negligence claims.

“Because there also are often cases where proof of negligence or causation in a medical malpractice action is lacking, [a separate rule within the state’s Rules of Civil Procedure] alternatively requires that ‘a plaintiff must allege facts establishing negligence under the doctrine of res ipsa loquitur,’” Murphy elaborates in his opinion for the Court of Appeals.

That doctrine “is invoked where no proof of the cause of an injury is available, the instrument involved in the injury is in the exclusive control of the defendant, and the injury is of a type that would not normally occur in the absence of negligence,” Murphy writes for the Appeals Court, citing two separate precedents against the Granville Health System in 2012 and Duke University Health System in 2013.

Those rulings – by the state Supreme Court in 2012 and Appeals Court in 2013 – established that a plaintiff “must, in part, allege facts from which a layperson could infer negligence based on common knowledge and ordinary human experience,” Murphy elaborates.

In her suit and subsequent appeal, Brenda Wyer conceded that “how the MOST form,” directing her father to be resuscitated or transferred to life support in the event of an emergency, “was replaced by the DNR form is not directly clear,” according to the case background.

“We agree the doctrine of res ipsa loquitur” – or the principle that the occurrence of an accident implies negligence – “applies here as to how the DNR order came to be created and placed in [Henry Wyer’s] file, thus negating the need for certification of expert review,” Murphy writes for the Appeals Court. “The most relevant inquiry is how [the] decedent’s status was changed to DNR, contrary to the MOST form completed a month earlier.”

The Court of Appeals, however, upheld Bridges’ dismissal of a second claim of alleged breach of contract that Brenda Wyer had asserted in her suit against ARMC. The case background doesn’t indicate what amount, if any, had been sought in damages against the hospital.
The Appeals Court overturned Bridges’ dismissal of the negligence claim and remanded that portion of the suit to Alamance County for additional proceedings.

The Court of Appeals, however, upheld a second ruling by Bridges that dismissed a claim of alleged breach of contract, based on the same facts supporting the negligence claim, concluding that several other precedents have established that a plaintiff cannot recover damages “under a breach of contract theory for what is, in reality, an action for medical malpractice,” Murphy opines. Appeals Court judges Chris Dillon and Lucy Inman concurred with the opinion, issued Friday, December 29.

Attorney Kya Johnson Greensboro represented Brenda Wyer and her father’s estate for the trial in Alamance County and for the appeal. ARMC was represented at the trial in Alamance County and for its appeal by J. Dennis Bailey of the Waldrep Wall Babcock & Bailey law firm in Winston-Salem.

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