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STATE
OF NORTH CAROLINA
COUNTY OF PITT |
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IN
THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
FILE NO. 01 CVS 728 |
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| NEIL
R. ANTHONY, |
| Plaintiff, |
| vs. |
| DAVID
H. DEATON, M.D., |
| Defendant. |
|
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)
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STATE
OF NORTH CAROLINA
COUNTY OF PITT |
|
IN
THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
FILE NO. 01 CVS 728 |
|
| NEIL
R. ANTHONY |
| Plaintiff, |
| vs. |
| GREGORY
F. MURPHY, M.D. and |
| GREENVILLE
UROLOGY CLINIC, P.A |
| Defendant. |
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PLAINTIFF'S
MEMORANDUM IN OPPOSITION TO DEFENDANTS'
MOTIONS TO COMPEL DISCOVERY
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| I.
INTRODUCTION |
Plaintiff is opposing defendants' motions to
compel disclosure of settlement amounts with
other parties for the following reasons: (1)
the parties that have settled, Pitt County
Memorial Hospital and one of its resident
physicians, have instructed plaintiff not to
divulge the amounts of settlement to anyone,
including these remaining defendants; (2)
informing these parties of the amounts of the
settlements would discourage settlements by
rewarding joint-tortfeasors who refuse to
contribute their fair share to a settlement at
mediation in hopes of being able to take
tactical advantage of learning the amount of
the credit afforded by their co-defendants;
and (3) by law, the amounts of settlements are
not relevant or discoverable.
This is a medical negligence action against
two physicians because they left a large green
operating room towel (measuring approximately
a foot by a foot and a half) inside the
plaintiff's abdomen during surgery they
performed on him at Pitt County Memorial
Hospital. The presence of the towel was
discovered five days later, when Mr. Anthony
underwent emergency surgery at the hospital
after becoming violently ill. As a result of
this retained towel, Mr. Anthony has undergone
two additional surgical procedures (including
the emergency procedure) and has suffered
serious injuries including a very large
permanent incisional hernia of his abdomen.
This is a medical negligence action against
two physicians because they left a large green
operating room towel (measuring approximately
a foot by a foot and a half) inside the
plaintiff's abdomen during surgery they
performed on him at Pitt County Memorial
Hospital. The presence of the towel was
discovered five days later, when Mr. Anthony
underwent emergency surgery at the hospital
after becoming violently ill. As a result of
this retained towel, Mr. Anthony has undergone
two additional surgical procedures (including
the emergency procedure) and has suffered
serious injuries including a very large
permanent incisional hernia of his abdomen.
Originally, plaintiff filed suit against Pit
County Memorial Hospital, Dr. Deaton, and Dr.
Tor M. Ljung, an ECU resident surgeon who
assisted in the surgery. After Dr. Deaton and
Dr. Ljung denied in their answers that they
had placed the towel or failed to remove it
before closure of the surgical wound,
plaintiff filed a separate suit against Dr.
Murphy and his practice, as Dr. Murphy was the
only other physician who participated in the
surgery.
Discovery has revealed that Dr. Deaton placed
the towel inside Mr. Anthony with the
knowledge and approval of Dr. Murphy. Both Dr.
Deaton and Dr. Murphy were attending surgeons
at Pitt County Memorial Hospital. The
operative notes state that Dr. Deaton closed
Mr. Anthony's abdomen at the completion of the
surgery. Dr. Ljung, the assisting ECU
resident, testified at deposition that he
performed the closure of Mr. Anthony's abdomen
but that Dr. Murphy helped him begin the
closure. Dr. Deaton testified that a search
and "sweep" of the abdomen prior to
closure should have detected the presence of
the towel.
The mediation settlement conference for these
companion cases was held on February 21, 2001.
Plaintiff settled with the hospital and Dr.
Ljung. The settlement agreements entered into
at mediation contain confidentiality clauses
forbidding the parties from disclosing the
amounts of the settlements. The settling
defendants expressly admonished plaintiff's
counsel that the amounts of the settlements
were not to be disclosed to the remaining
defendants in these cases.
At the mediation, defendants Dr. Deaton
and Dr. Murphy (who are insured by the same
insurer) refused to negotiate with plaintiff
despite the fact that North Carolina law
provides that a surgeon is responsible for
removing all harmful and unnecessary objects
from a patient's body at the completion of
surgery. Dr. Deaton and Dr. Murphy apparently
take the position that the nurses were solely
responsible for failing to conduct the sponge
count properly, and that Dr. Ljung was solely
negligent in failing to remove the towel
before the plaintiff's abdomen was closed.
1 "Uniformly, in this and other
courts, res ipsa loquitur has been applied to
instances where foreign bodies, such as
sponges, towels, needles, glass, etc., are
introduced into the patient=s body during
surgical procedures and left there."
Mitchell v. Saunders, 219 N.C. 178, 182, 13
S.E2d 242 (1941) (Emphasis added)
However, the Director of the hospital's
operating room testified that the surgeons and
the nurses are jointly responsible for
following the hospital's sponge count policy,
and that the policy was not followed during
Mr. Anthony's surgery. Further, although Dr.
Deaton testified that the low annual test
scores of Dr. Ljung during his residency were
a matter of "concern" at the
hospital, and that Dr. Ljung was not one of
the more "conscientious" residents,
Dr. Deaton did not directly supervise Dr.
Ljung during the closure. In addition, Dr.
Murphy denies that he was present in the
operating room when Dr. Ljung closed Mr.
Anthony, and Dr. Murphy also denies that he
was responsible for supervising Dr. Ljung
during the closure. This testimony is in
conflict with the testimony of Dr. Ljung that
he was initially assisted in the closure by
Dr. Murphy. In addition, Dr. Ljung testified
that he was acting under the supervision of
both Dr. Deaton and Dr. Murphy when he closed
the plaintiff. Discovery has established that
both Dr. Deaton and Dr. Murphy had the right
to control Dr. Ljung's performance of his
duties. 3
2 North Carolina law, as well as the
policies of Pitt County Memorial Hospital,
holds the surgeon responsible under the
circumstances of this case. See Tice v. Hall,
310 N.C. 589, 592, 313 S.E.2d 565, 567 (1983)
("When a surgeon relies upon nurses or
other attendants for accuracy in the removal
of sponges from the body of his patient, he
does so at his peril.") (Emphasis added)
The fact that Dr. Deaton and Dr. Murphy had
the right to control Dr. Ljung's manner of
performance of his duties is hardly surprising
given the holdings of our appellate courts on
the issue of the vicarious liability of
attending surgeons at Pitt County Memorial
Hospital for the negligence of ECU residents.
See, i.e., Brown v. Flowe, 128 N.C.App. 668,
496 S.E.2d 830 (1998) ( Directed verdict for
plaintiff affirmed on the issue of vicarious
liability of an attending surgeon at Pitt
Memorial for acts of an ECU resident surgeon,
because the hospital and medical staff bylaws
and the Affiliation Agreement between ECU and
the hospital established that the attending
surgeons have the right to control the
residents.) See also, Rouse v. Pitt County
Memorial Hospital, 343 N.C. 186, 470 S.E.2d 44
(1996) (There was evidence in the record that
ECU had exclusively delegated to attending
physicians the right to control the residents'
manner of performance of the provision of
medical services to patients, "thereby
allowing the resident physicians' negligence
to be imputed to the attending
physicians.") (Emphasis added)
Since the date of the mediation, there has
been no further activity in these cases other
than the efforts of these defendants to
discover the amounts of the settlements and
some discussion among counsel regarding the
terms of a discovery scheduling order to be
entered.
Having refused to accept any responsibility or
accountability for Mr. Anthony's injuries,
despite the law and the facts, and having
refused to participate in the negotiations
with the other parties at mediation in an
effort to settle this foreign object case, the
remaining defendants should not now be
permitted to benefit from their tactic by
learning the amounts paid by parties who
expressly bargained for confidentiality as
against these defendants. The negotiating
defendants expressly bargained for
confidentiality and instructed plaintiff not
to divulge the terms of settlement to the
remaining defendants who are bringing on this
motion.
If the Court were to order the plaintiff to
disclose the settlement terms in violation of
the confidentiality clauses of the settlement
agreements, the Court would be discouraging
the favored public policy of encouraging
prompt settlements (See Matthews v. Hill, 2
N.C.App. 350, 163 S.E.2d 7 (1968). Such a
result would encourage parties who share
responsibility in the context of multiple
defendants, to step back and watch their
co-defendants negotiate and enter into
settlements, then litigate to learn the
amounts that have been paid in confidence, and
decide whether or not to try the case. These
defendants want to discover, in essence,
whether in their judgment the settling parties
have paid enough, at a mediation these
defendants chose not to negotiate at, to cover
their exposure. This is a practice that should
not be encouraged by this Court.
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II.
THE SETTLEMENT AGREEMENTS ARE NOT RELEVANT TO
THE ISSUES IN THIS ACTION AND CANNOT LEAD TO
THE DISCOVERY OF ADMISSIBLE EVIDENCE
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Defendants Dr. Deaton and Dr. Murphy have
filed motions to compel the plaintiff to
answer interrogatories requesting information
pertaining to the mediated settlements, and to
produce copies of settlement agreements and
other documents relating to the
settlements.
The standard defendants must meet to prevail
on their motions is set forth in Rule 26 of
the Rules of Civil Procedure. Defendants must
establish that the information sought by their
discovery requests is relevant to the subject
matter of the actions or reasonably calculated
to lead to the discovery of admissible
evidence.
Defendants cannot show relevancy or
discoverability of the terms of plaintiff's
settlements with the hospital and Dr. Ljung.
First of all, Our Court of Appeals has held
that evidence of a settlement with another
party is not relevant to the issues of a case
arising out of the same facts. Cates v.
Wilson, 83 N.C.App. 448, 350 S.E.2d 898
(1986), modified, 321 N.C. 1, 361 S.E.2d 734
(1987). In Cates, our Court of Appeals
stated as follows: |
We
hold that evidence of plaintiffs' separate
lawsuit against Dr. Wein was irrelevant
under N.C.Gen.Stat. ' 8C?1, Rule 402 of
the North Carolina Rules of Evidence, and
that its admission contravenes the strong
public policy favoring settlement of
controversies out of court. See Commentary
to N.C.Gen.Stat. ' 8C?1, Rule 408; Ramsey
v. Camp, 254 N.C. 443, 119 S.E.2d 209
(1961); Dixie Lines v. Grannick, 238 N.C.
552, 78 S.E.2d 410 (1953). Defendants have
not asserted, nor do we see, any grounds
for admitting this evidence.
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In
addition, Rule 408 of the Rules of Evidence
expressly prohibits admissibility of
settlement agreements and amounts of
settlements: |
Evidence
of (1) furnishing or offering or promising
to furnish, or (2) accepting or offering
or promising to accept, a valuable
consideration in compromising or
attempting to compromise a claim which was
disputed as to either validity or amount,
is not admissible to prove liability for
or invalidity of the claim or its amount.
Evidence of conduct or evidence of
statements made in compromise negotiations
is likewise not admissible. This rule does
not require the exclusion of any evidence
otherwise discoverable merely because it
is presented in the course of compromise
negotiations. This rule also does not
require exclusion when the evidence is
offered for another purpose, such as
proving bias or prejudice of a witness,
negativing a contention of undue delay, or
proving an effort to obstruct a criminal
investigation or prosecution. (Emphasis
Added).
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Because the terms of settlement are
expressly inadmissible by virtue of Rule 408,
discovery of such terms cannot lead to the
discovery of admissible evidence.
Therefore, defendants' discovery requests are
outside the scope of discovery as defined by
Rule 26(b)(1) of the Rules of Civil Procedure.
North Carolina's Rule
408 is identical to Rule 408 of the Federal
Rules of Evidence, with the exception of minor
clarifying language. See Commentary, Rule 408,
North Carolina Rules of Evidence. Because the
Federal Rules of Civil Procedure are the
source of the North Carolina Rules of Civil
Procedure, North Carolina courts look to
federal case law for "enlightenment and
guidance" when interpreting our rules of
civil procedure. Sutton v. Duke, 277
N.C. 94, 176 S.E.2d 161, 165 (1970). The case
of Bottaro v. Hatton Associates, 96
F.R.D. 158 (E.D.N.Y. 1982) (copy attached as
Exhibit 1) is instructive in discussing the
reasons defendants' motions should fail. In
that case the plaintiff settled with one
defendant during pretrial proceedings. The
settling parties agreed in their settlement
documents on confidentiality. Two of the
remaining defendants moved to compel
disclosure of the agreement pursuant to Rule
37. The Court denied the motion to compel,
stating that "..it is clear that the
object of the inquiry must have some
evidentiary value before an order to compel
disclosure of otherwise inadmissible material
will issue." Id. at 159.
In
Bottaro, the moving defendants
contended that the settlement agreement was
discoverable because it might produce
admissible evidence on the question of
damages. However, the Court traced the
legislative history of Federal Rule 408, which
revealed that the exception contended for by
the defendants to allow discovery of a
settlement agreement on the issue of damages,
had been rejected by the Senate Committee on
the Judiciary as "constitut[ing] an
unjustifiable restraint upon efforts to
negotiate settlementsBthe encouragement of
which is the purpose of the rule." S.Rep.
No. 1277, 93d Cong. 2d Sess. 10 (1974)." Bottaro,
supra at 160.
Because the United States Senate specifically
rejected the contention of the defendants, and
elected instead to promote "...the strong
public policy of favoring settlements and the
Congressional intent to further that policy by
insulating the bargaining table from
unnecessary intrusions..." Id. at 160,
the Court denied defendants' motion. The Court
pointed out the obvious fact that the
settlement terms were not reasonably
calculated to lead to discovery of admissible
evidence.
Defendants also argued in Bottaro that
discovery of the amount of settlement was
relevant to determine whether the settling
party may be liable to the moving defendants
for contribution despite the settlement with
the plaintiff. However, the Court observed
that the amount of the total liability in the
case would not be known until a final judgment
had been rendered. Even at that point the
settlement terms would be irrelevant: |
Even
then, the settlement would not be evidence
relevant to any issue in this case other
than the ministerial apportionment of
damages, a mathematical computation which
the Court rather than the jury will
perform. Hence, the amount of the
settlement is not relevant to any issue in
this case at this time.
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| Id. |
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The same principle applies to this case. The
issues before the jury will be whether the
defendants were negligent, whether defendants'
negligence caused the plaintiff's injuries and
damages, and what are the total amount of
damages the plaintiff suffered because of
defendants' negligence.
The amount of damages that must be paid by the
defendants in this action, in relation to what
amounts other parties have already paid, is
not a relevant issue in this case. If a
verdict is returned for the plaintiff
establishing the total amount of his damages,
and the status of the defendants as joint
tort-feasors, the Court would then perform the
ministerial act of determining the proper
amounts owed by the defendants pursuant to the
provisions of Chapter 1B. See also Ryals
v.Hall-Lane Moving and Storage Co., 122
N.C. App. 134, 468 S.E.2d 69 (1996)
(held that defendants were not prejudiced by
going through trial without information about
a secret settlement with two co-defendants;
the settlement terms were not admissible
evidence, and after the jury verdict in the
amount of $25,000 was rendered, the Court gave
the defendants a credit of $10,000, the amount
of the secret settlement).
III.
CONCLUSION
Based
on the foregoing reasoning and authorities,
the plaintiff respectfully requests the Court
to enter an order denying the defendants'
motions to compel discovery.
This the ______
day of July, 2001.
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BENTLEY
LAW OFFICES, P.A.
____________________________
Charles A. Bentley, Jr.
Post Office Box 52089
Durham, North Carolina 27717-2089
Telephone: (919) 682-3700 |
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CERTIFICATE
OF SERVICE
I do
hereby certify that on this the ____ day of July, 2001, I served
copies of the foregoing PLAINTIFF'S MEMORANDUM IN OPPOSITION TO
DEFENDANTS' MOTION TO COMPEL DISCOVERY on counsel for the
defendants by hand delivery at the Pitt County courthouse as
follows:
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John
W. Minier
Patrick Neighbors
Yates, McLamb, & Weyher, L.L.P.
Post Office Box 2889
Raleigh, NC 27602-2889
William
P. Daniell
Newsom, Graham, Hedrick & Kennon, P.A.
PO Box 51579
Durham, North Carolina 27717-1579
______________________
Charles A. Bentley, Jr
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