Peter v. Vullo

NO. COA13-1050

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

MICHELE LaFRAGE PETER and CARL
PETER,
Plaintiffs,

v. Mecklenburg County
No. 11 CVS 18251
JOHN VULLO, M.D., SOUTHEAST
ANESTHESIOLOGY CONSULTANTS, PLLC
f/k/a SOUTHEAST ANESTHESIOLOGY
CONSULTANTS, P.A., AMERICAN
ANESTHESIOLOGY OF THE SOUTHEAST,
PLLC, THE CHARLOTTE-MECKLENBURG
HOSPITAL AUTHORITY d/b/a CAROLINAS
HEALTHCARE SYSTEM d/b/a CAROLINAS
MEDICAL CENTER, and MERCY
HOSPITAL, INC.,
Defendants.

Appeal by plaintiffs from order entered 12 April 2013 by

Judge Richard D. Boner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 5 February 2014.

Van Laningham Duncan PLLC, by Stephen M. Russell, Jr., for
plaintiff-appellants.

Parker Poe Adams & Bernstein, LLP, by John H. Beyer, Jami
J. Farris, and John D. Branson, for defendants John F.
Vullo, M.D., Southeast Anesthesiology Consultants, PLLC,
f/k/a Southeast Anesthesiology Consultants, P.A., and
American Anesthesiology of the Southeast, PLLC.

Lincoln Derr PLLC, by Tricia M. Derr, for defendants The
Charlotte-Mecklenburg Hospital Authority d/b/a/ Carolinas
Healthcare System d/b/a Carolinas Medical Center and Mercy
Hospital, Inc.
 -2-

McCULLOUGH, Judge.

Plaintiffs Michele LaFrage Peter and Carl Peter appeal from

an order granting summary judgment in favor of defendants John

Vullo, M.D., Southeast Anesthesiology Consultants, PLLC f/k/a

Southeast Anesthesiology Consultants, P.A., American

Anesthesiology of the Southeast, PLLC, The Charlotte-Mecklenburg

Hospital Authority d/b/a Carolinas Healthcare System d/b/a

Carolinas Medical Center, and Mercy Hospital, Inc. Based on the

reasons stated herein, we reverse in part and affirm in part.

I. Background

Plaintiffs Michele LaFrage Peter (“Ms. Peter”) and Carl

Peter (“Dr. Peter”) are married. On 13 July 2012, plaintiffs

filed an amended complaint against defendants John F. Vullo,

M.D., Southeast Anesthesiology Consultants, PLLC f/k/a Southeast

Anesthesiology Consultants, P.A., American Anesthesiology of the

Southeast, PLLC, (collectively “the doctor defendants”), The

Charlotte-Mecklenburg Hospital Authority d/b/a Carolinas

Healthcare System d/b/a Carolinas Medical Center (“CMC”), and

Mercy Hospital, Inc. (“CMC Mercy”) (collectively “the hospital

defendants”). Plaintiffs’ claims included professional
 -3-
negligence, loss of consortium by Dr. Peter, and respondeat

superior liability.

Plaintiffs’ complaint alleged the following: In February

2010, Ms. Peter suffered a severe sprain of her right ankle. In

June 2010, after several months of physical therapy and two

MRIs, Ms. Peter was referred to Dr. Robert Anderson, a foot and

ankle specialist with OrthoCarolina in Charlotte, North

Carolina. Dr. Anderson recommended surgical intervention and

scheduled for it to take place on 22 December 2010 at CMC/CMC

Mercy. On 22 December 2010, Ms. Peter underwent surgery at

CMC/CMC Mercy. Plaintiffs alleged that defendants induced

regional anesthesia in preparation for Ms. Peter’s right ankle

arthroscopic surgery. “Ms. Peter was given fentanyl and versed

for sedation and remained in ‘conscious sedation’ throughout the

procedure.” Dr. Vullo, an employee of Southeast Anesthesiology

Consultants, PLLC, f/k/a Southeast Anesthesiology Consultants,

P.A. and/or American Anesthesiology of the Southeast, PLLC, was

to administer a popliteal nerve block and a saphenous nerve

block into an area behind Ms. Peter’s right knee.

Plaintiffs alleged that at some point during the procedure,

an unknown female attendant entered the room to assist Dr. Vullo

as he was “having problems locating a nerve” to administer the
 -4-
appropriate blocks. Plaintiffs assert that defendants failed to

properly administer the nerve blocks and improperly administered

repeated needle insertions, resulting in nerve damage. Ms.

Peter stated that immediately following the injections, she

experienced extreme pain and numbness in her right leg from

which she still suffers. The pain and numbness has resulted in

her inability to work and conduct day-to-day activities.

The hospital defendants and the doctor defendants filed

motions for summary judgment on 25 February 2013 pursuant to

Rule 56 of the North Carolina Rules of Civil Procedure. The

doctor defendants argued that plaintiffs’ complaint was a

medical malpractice action as defined by N.C. Gen. Stat. § 90-

21.11. The doctor defendants contended that on 10 October 2012,

a “Revised Consent Discovery Scheduling Order” was entered.

This order set forth a schedule for the designation of expert

witnesses and the completion of discovery prior to trial.

Pursuant to this order, plaintiffs identified two retained

medical expert witnesses that were to testify at trial: Dr.

Steven Fiamengo, anesthesiologist of Newberry, South Carolina,

and Dr. Robert Friedman, neurologist of Palm Beach, Florida.

Both doctors were deposed and the doctor defendants argued that

plaintiffs “failed to designate a qualified expert witness to
 -5-
offer an opinion that Dr. Vullo deviated from the applicable

standard of care.” Furthermore, the doctor defendants argued

that plaintiffs could not establish a prima facie case of

medical malpractice.

On 5 April 2013, plaintiffs filed an affidavit of Dr.

Fiamengo in response to defendants’ motions for summary

judgment. On 8 April 2013, doctor defendants filed a motion to

strike Dr. Fiamengo’s affidavit.

Following a hearing held at the 9 April 2013 term of

Mecklenburg County Superior Court, the trial court entered an

order granting defendants’ motions for summary judgment and

dismissing plaintiffs’ claims with prejudice on 12 April 2013.

The trial court also held the following:

The Court declines to strike Dr. Fiamengo’s
Affidavit in its entirety, but is aware of
and has applied the law as set forth in
Wachovia Mortgage Co. v. Autry-Barker-
Spurrier Real Estate, Inc., 39 N.C. App. 1,
249 SE2d 727 (1978) (holding that a party
opposing a motion for summary judgment
cannot create an issue of fact by filing an
affidavit contradicting the prior sworn
testimony of a witness).

From this 12 April 2013 summary judgment order, plaintiffs

appeal.

II. Standard of Review
 -6-
“Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows 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.”

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576

(2008) (citation and quotation marks omitted).

The moving party bears the burden of
establishing the lack of a triable issue of
fact. If the movant meets its burden, the
nonmovant is then required to produce a
forecast of evidence demonstrating that the
[nonmoving party] will be able to make out
at least a prima facie case at trial.
Furthermore, the evidence presented by the
parties must be viewed in the light most
favorable to the non-movant.

Thompson v. First Citizens Bank & Trust Co., 151 N.C. App. 704,

706, 567 S.E.2d 184, 187 (2002) (internal citations and

quotation marks omitted).

III. Discussion

On appeal, plaintiffs argue that the trial court erred (A)

by granting summary judgment in favor of the doctor defendants;

(B) in its consideration of Dr. Fiamengo’s affidavit; (C) by

granting summary judgment in favor of the hospital defendants;

and (D) by granting summary judgment as to the loss of

consortium claim. Because issues (A) and (B) are closely

related, we will address them together.
 -7-

A. Summary Judgment in favor of the Doctor Defendants

and

B. Affidavit of Dr. Fiamengo

Plaintiffs argue that that trial court erred by granting

summary judgment in favor of the doctor defendants where

plaintiffs forecast sufficient evidence to satisfy the

requirements of a medical malpractice claim pursuant to section

90-21.12(a) of the North Carolina General Statutes. Plaintiffs

also argue that the trial court erred in its consideration of

Dr. Fiamengo’s affidavit. We agree.

N.C. Gen. Stat. § 90-21.12(a) provides as follows:

in any medical malpractice action as defined
in G.S. 90-21.11(2)(a), the defendant health
care provider shall not be liable for the
payment of damages unless the trier of fact
finds by the greater weight of the evidence
that the care of such health care provider
was not in accordance with the standards of
practice among members of the same health
care profession with similar training and
experience situated in the same or similar
communities under the same or similar
circumstances at the time of the alleged act
giving rise to the cause of action[.]

N.C. Gen. Stat. § 90-21.12(a) (2013) (emphasis added). “In

order to maintain an action for medical malpractice, a plaintiff

must offer evidence to establish (1) the applicable standard of

care; (2) breach of that standard; (3) proximate causation; and
 -8-
(4) damages.” Robinson v. Duke Univ. Health Systems, __ N.C.

App. __, __, 747 S.E.2d 321, 334 (2013) (citation omitted).

It is well established that

[b]ecause questions regarding the standard
of care for health care professionals
ordinarily require highly specialized
knowledge, the plaintiff must establish the
relevant standard of care through expert
testimony. Further, the standard of care
must be established by other practitioners
in the particular field of practice of the
defendant health care provider or by other
expert witnesses equally familiar and
competent to testify as to that limited
field of practice.

Although it is not necessary for the witness
testifying as to the standard of care to
have actually practiced in the same
community as the defendant, the witness must
demonstrate that he is familiar with the
standard of care in the community where the
injury occurred, or the standard of care of
similar communities.

Smith v. Whitmer, 159 N.C. App. 192, 195-96, 582 S.E.2d 669,

671-72 (2003) (internal citations and quotation marks omitted).

In the case sub judice, plaintiffs presented Dr. Fiamengo

as their expert witness to testify that the medical care

received by Ms. Peter did not comply with the applicable

standard of care. Dr. Fiamengo is an anesthesiologist

practicing at Crescent Anesthesia Associates, LLC, in South

Carolina. Dr. Fiamengo was deposed first on 15 November 2012
 -9-
and then subsequently provided an affidavit on 5 April 2013.

The doctor defendants filed a motion to strike the affidavit,

arguing that plaintiffs “served the contradictory affidavit of

Dr. Fiamengo in an attempt to create an issue of fact and defeat

these Defendants’ Motion for Summary Judgment,” prohibited by

North Carolina law.

Our review establishes that during Dr. Fiamengo’s 15

November 2012 deposition testimony, Dr. Fiamengo testified that

although he believed Dr. Vullo’s actions amounted to a deviation

from the standard of care, he failed to demonstrate that he was

familiar with the standard of care in the community where the

injury occurred. Rather, Dr. Fiamengo appeared to be applying a

national standard of care rather than the “same or similar

community” standard required pursuant to N.C. Gen. Stat. § 90-

21.12:

[Counsel for the doctor defendants]: Have
you arrived at some opinions in this case
concerning the standard of care that applied
to Dr. Vullo when he performed this
peripheral nerve block for Mrs. Peter?

[Dr. Fiamengo]: My opinion is that the
nerve injury occurred during the performance
of the block, that it should have been
recognized with a sonogram, and that
injection occurred nevertheless and it
resulted in an injury. And because of the
lack of recognition that the injury occurred
–- that the injection occurred
 -10-
intraneurally, that that was a deviation
from the standard of care.

. . . .

[Counsel for the doctor defendants]: Now
with respect to that standard of care
opinion, are you taking into consideration
in forming that opinion anything about the
medical community in Charlotte as it existed
in December 2010?

[Dr. Fiamengo]: No

. . . .

[Counsel for the doctor defendants]: So am
I right, Dr. Fiamengo, that the standard of
care that you’re applying to assess Dr.
Vullo’s care in this case would be a
national standard of care?

[Dr. Fiamengo]: Yes.

Dr. Fiamengo’s 5 April 2013 affidavit, on the other hand,

provided as follows:

8. I have reviewed information about the
community of Charlotte, North Carolina,
Mecklenburg County, and CMC Mercy
Hospital for the period December 2010. I
am familiar with the size of the
population and economic condition of
Charlotte, North Carolina. I am familiar
with the level of care and resources
available at the hospital, the
facilities, and the number of health care
providers for anesthesiology.

9. I have worked in communities similar to
Charlotte and performed anesthesiology
services in a hospital similar in size
and resources to CMC Mercy.
 -11-

10. The standard for performance of popliteal
nerve blocks would not differ between my
practice and an anesthesiologist in
Charlotte, NC, given the similarities
between my practice compared to the
resources available to CMC Mercy and the
experience of Dr. Vullo.

11. I am familiar with the prevailing
standard of care for performing popliteal
nerve blocks in the same or similar
community to Charlotte, North Carolina in
December 2010 by a physician with the
same or similar training, education, and
experience as Dr. Vullo.

12. Based on my review of this case, it is my
opinion within a reasonable degree of
medical certainty that the care of Dr.
Vullo provided to Michele Peter was not
in accordance with the standards of
practice among members of the same health
care profession with similar training and
experience situated in the same or
similar communities under the same or
similar circumstances at the time of the
. . . performance of Ms. Peter’s nerve
block in December 2010.

13. The applicable standard in Charlotte in
2010 for an anesthesiologist such as Dr.
Vullo required, among other things, that
Dr. Vullo recognize and avoid intraneural
injections while performing popliteal
nerve blocks. Dr. Vullo failed to do so
in this case, which directly caused Ms.
Peter’s injuries.

The trial court stated in its summary judgment order that

it declined to strike Dr. Fiamengo’s affidavit in its entirety,

but noted that it had “applied the law as set forth in Wachovia
 -12-
Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C.

App. 1, 249 SE2d 727 (1978) (holding that a party opposing a

motion for summary judgment cannot create an issue of fact by

filing an affidavit contradicting the prior sworn testimony of a

witness).”

Plaintiffs argue, and we agree, that the trial court

erroneously characterized Dr. Fiamengo’s affidavit testimony as

a tactic to contradict his own prior deposition testimony, in an

attempt to create an issue of fact to defeat defendants’ summary

judgment motions. Rather, we believe that the circumstances are

very similar to the facts found in Roush v. Kennon, 188 N.C.

App. 570, 656 S.E.2d 603 (2008). In Roush, the trial court

granted the defendants’ motion to strike the plaintiff’s

proffered expert witness, Dr. Tuzman. The defendants argued,

among other things, that Dr. Tuzman was not qualified to offer

standard of care opinions because he had no familiarity with

Charlotte, North Carolina as required pursuant to Rule 9(j)1.

1
Rule 9(j) of the North Carolina Rules of Civil Procedure
provides for the requirements when pleading medical malpractice:
Any complaint alleging medical malpractice
by a health care provider pursuant to G.S.
90-21.11(2)a. in failing to comply with the
applicable standard of care under G.S. 90-
21.12 shall be dismissed unless: (1) The
pleading specifically asserts that the
medical care and all medical records
 -13-
Specifically, defendants argued that a deposition prior to trial

established that Dr. Tuzman was not qualified because he had

never been to Charlotte, the location where the alleged injury

occurred, knew nothing about the dental community in Charlotte,

and believed in the existence of a national standard of care for

all dentists. Id. at 574, 656 S.E.2d at 607. Our Court held

that

the record on appeal indicates that
subsequent to his deposition, Dr. Tuzman
sought to supplement his understanding of
the applicable standard of care in the
Charlotte metropolitan area by reviewing,
inter alia, the demographic data for the
Charlotte metropolitan area, the Dental
Rules of the North Carolina State Board of
Dental Examiners, and the deposition of [the
defendant] Dr. Kennon regarding the
procedures, techniques, and implements which
he used while performing a molar extraction
on plaintiff. After reviewing these
sources, Dr. Tuzman was able to conclude
that the standard of care for Atlanta,
Georgia (in which he practiced), was the
same standard of care that applied to the
similar community of Charlotte, North
Carolina. . . . Thus, we find that Dr.
Tuzman possessed sufficient familiarity with

pertaining to the alleged negligence that
are available to the plaintiff after
reasonable inquiry have been reviewed by a
person who is reasonably expected to qualify
as an expert witness under Rule 702 of the
Rules of Evidence and who is willing to
testify that the medical care did not comply
with the applicable standard of care.
N.C. Gen. Stat. § 1A-1, Rule 9(j)(1) (2013).
 -14-
Charlotte and the practice of dentistry
therein to testify as to the appropriate
standard of care as required by N.C. Gen.
Stat. § 90-21.12.

Id. at 576-77, 656 S.E.2d at 607-608.

The record before us indicates that subsequent to giving

his deposition, Dr. Fiamengo reviewed information about the

community of Charlotte and CMC Mercy for the period of December

2010, became familiar with the population size and economic

condition of Charlotte, and became familiar with the level of

care and resources available at the hospital, the facilities,

and the number of health care providers for anesthesiology.

Furthermore, Dr. Fiamengo testified that he had worked in

communities similar to Charlotte and performed anesthesiology

services in a hospital similar in size and resources to CMC

Mercy. He testified that he was “familiar with the prevailing

standard of care for performing popliteal nerve blocks in the

same or similar community to Charlotte, North Carolina in

December 2010 by a physician with the same or similar training,

education, and experience as Dr. Vullo.” Thus, we hold that the

trial court erred by applying the holding in Wachovia Mortgage

Co. to Dr. Fiamengo’s affidavit.

Dr. Fiamengo testified that “[t]he applicable standard in

Charlotte in 2010 for an anesthesiologist such as Dr. Vullo
 -15-
required, among other things, that Dr. Vullo recognize and avoid

intraneural injections while performing popliteal nerve blocks.

Dr. Vullo failed to do so in this case, which directly caused

Ms. Peter’s injuries.” Reviewing the evidence in the light most

favorable to plaintiffs, plaintiffs offered sufficient evidence

of (1) the applicable standard of care, (2) breach of that

standard of care, (3) proximate causation, and (4) damages,

successful to defeat defendants’ summary judgment motion.

When plaintiffs have introduced evidence
from an expert stating that the defendant
doctor did not meet the accepted medical
standard, [t]he evidence forecast by the
plaintiffs establishes a genuine issue of
material fact as to whether the defendant
doctor breached the applicable standard of
care and thereby proximately caused the
plaintiff’s injuries. This issue is
ordinarily a question for the jury, and in
such case, it is error for the trial court
to enter summary judgment for the defendant.

Robinson, __ N.C. App. at __, 747 S.E.2d at 335 (citation
omitted).

Based on the foregoing reasons, we reverse the order of the

trial court granting summary judgment in favor of the doctor

defendants and remand to the trial court for further proceedings

consistent with this opinion.

C. Summary Judgment in Favor of the Hospital Defendants
 -16-
Next, plaintiffs argue that there was sufficient evidence

to support their claim that the hospital defendants were liable

under the doctrine of respondeat superior. Plaintiffs argue

that “an inference can be drawn that an agency relationship

existed between Dr. Vullo and the Hospital Defendants” since CMC

and CMC Mercy held themselves out as providing medical services

to Ms. Peter under the doctrine of apparent agency. We

disagree.

Under the doctrine of respondeat superior, a
hospital is liable for the negligence of a
physician or surgeon acting as its agent.
There will generally be no vicarious
liability on an employer for the negligent
acts of an independent contractor. Unless
there is but one inference that can be drawn
from the facts, whether an agency
relationship exists is a question of fact
for the jury. If only one inference can be
drawn from the facts then it is a question
of law for the trial court.

Hylton v. Koontz, 138 N.C. App. 629, 635, 532 S.E.2d 252, 257

(2000) (citations omitted).

“[A]pparent agency would be applicable to hold the hospital

liable for the acts of an independent contractor if the hospital

held itself out as providing services and care.” Diggs v.

Novant Health, Inc., 177 N.C. App. 290, 305, 628 S.E.2d 851, 861

(2006) (citation omitted).

Under this approach, a plaintiff must prove
 -17-
that (1) the hospital has held itself out as
providing medical services, (2) the
plaintiff looked to the hospital rather than
the individual medical provider to perform
those services, and (3) the patient accepted
those services in the reasonable belief that
the services were being rendered by the
hospital or by its employees. A hospital
may avoid liability by providing meaningful
notice to a patient that care is being
provided by an independent contractor.

Id. at 307, 628 S.E.2d at 862 (citation omitted).

Plaintiffs compare the facts of the present case to those

found in Diggs v. Novant Health, Inc., 177 N.C. App. 290, 628

S.E.2d 851 (2006), and argue that a jury could decide that Ms.

Peter accepted medical services in the reasonable belief that

the services were being provided by the hospital defendants.

After thoughtful review, we find the facts of the present case

distinguishable.

In Diggs, the plaintiff filed a medical malpractice action

arising out of a gall bladder surgery performed at Forsyth

Medical Center (“FMC”). The plaintiff alleged that Forsyth

Memorial Hospital, Inc., Novant Health, Inc., and Novant Health

Triad Region, L.L.C. were vicariously liable for the negligence

of the hospital nursing staff and the team assigned to

administer anesthesia to the plaintiff. Id. at 292, 628 S.E.2d

at 853. The trial court granted summary judgment in favor of
 -18-
the Forsyth Memorial Hospital, Inc., Novant Health, Inc., and

Novant Health Triad Region, L.L.C. Id. Our Court affirmed

summary judgment for Novant Health Inc. and Novant Health Triad

Region, L.L.C., but reversed summary judgment as to Forsyth

Memorial Hospital, Inc. (“the hospital”). Id.

The Diggs plaintiff chose to have Dr. Ismael Goco, who had

hospital privileges at FMC, perform her surgery. On 12 October

1999, the plaintiff was admitted to FMC, which is operated by

the hospital. The plaintiff’s surgery required general

anesthesia. Piedmont Anesthesia & Pain Consultants, P.A.

(“Piedmont”) had a contract with the hospital that granted

Piedmont the exclusive right to provide anesthesia services at

FMC. Id. at 293, 628 S.E.2d at 854. Piedmont employees, Dr.

McConville and nurse Sheila Crumb, “were responsible for

administering anesthesia to [the] plaintiff through an induction

and intubation process. Ms. Crumb performed the intubation,

which involved inserting a tube into [the] plaintiff’s trachea,

under the supervision of Dr. McConville.” Id. During the

plaintiff’s procedure, her esophagus was perforated, resulting

in injuries. Id. The Diggs plaintiff argued that she was not

aware that Dr. McConville and Ms. Crumb were not employees of

the hospital and argued that the hospital was vicariously liable
 -19-
for the negligence of Dr. McConville, Ms. Crumb, and Piedmont.

Id. at 293-94, 628 S.E.2d at 854. Our Court held that the

plaintiff failed to present sufficient evidence to establish a

prima facie case of actual agency and then turned to the issue

of liability based on apparent agency. Id. at 301, 628 S.E.2d

at 858.

Our Court found that the plaintiff had presented sufficient

evidence to meet the test of apparent agency based on the

following evidence: (1) the hospital had a Department of

Anesthesiology with a Chief of Anesthesiology and a Medical

Director, “a fact that a jury could reasonably find indicated to

the public that FMC was providing anesthesia services to its

patients.” Id. at 307-308, 628 S.E.2d at 862; (2) the hospital

chose to provide anesthesia services by contracting with

Piedmont exclusively, with Piedmont doctors serving as the

hospital’s Chief of Anesthesiology and Medical Director; (3) the

plaintiff and other surgical patients had no choice as to who

would provide anesthesia services for their operations; and (4)

the plaintiff signed a “Consent to Operation and/or Other

Procedures” form that was printed on FMC letterhead which

distinguished between the plaintiff’s personal physician and

unnamed anesthesiologists. Id. at 308, 628 S.E.2d at 863.
 -20-
Based on the foregoing, our Court held that “[a] jury could

decide based on this [consent] form that plaintiff was, through

this form, requesting anesthesia services from FMC and that –

given the distinction made between plaintiff’s personal

physician and the unnamed anesthesiologist – plaintiff was

accepting those services in the reasonable belief that the

services would be provided by the hospital and its employees.”

Id. at 308-309, 628 S.E.2d at 863.

In the case sub judice, the record indicates that as of

December 2010, Dr. Vullo was not an employee of the hospital

defendants. Dr. Vullo was an employee of American

Anesthesiology of the Southeast, PLLC, which had acquired

Southeast Anesthesiology Consultants in October 2010. Dr. Vullo

had hospital staff privileges at CMC Mercy and provided

anesthesia services to Ms. Peter at CMC Mercy. Nonetheless, our

Court has established that “evidence that a physician has

privileges at a hospital is not sufficient, standing alone, to

make the physician an agent of the hospital[.]” Id. at 301, 628

S.E.2d at 859.

Distinguishable from the facts found in Diggs, Ms. Peter

was provided meaningful notice from the hospital defendants that

the anesthesiologists may be independent contractors. In fact,
 -21-
the hospital defendants expressly disclaimed that independent

contractors providing certain services at the hospital

defendants’ facilities were not agents of the hospital

defendants.

In a 11 July 2012 deposition, Ms. Peter testified that

prior to her surgery on 22 December 2010, she signed a

“Confirmation of Consent for Procedure or Operation” form (“the

consent form”) and “Request for Treatment and Authorization

Form” (“the authorization form”). The consent form included a

clause, right above the signature line, that stated the

following:

I UNDERSTAND THAT MY PHYSICIAN, THE
ANESTHESIOLOGISTS, RADIOLOGISTS,
PATHOLOGISTS, AND OTHER HEALTH CARE
PROVIDERS MAY NOT BE EMPLOYED BY OR BE
AGENTS OF THE HOSPITAL, AND I AGREE THE
HOSPITAL IS NOT RESPONSIBLE OR LIABLE FOR
WHAT THEY DO OR FAIL TO DO.

(emphasis added). Furthermore, the authorization form contained

a provision entitled “Notice of Independent Contractors” which

provided as follows:

I understand that [The Charlotte-Mecklenburg
Hospital Authority] has contracted with
certain independent professional groups for
such groups to exclusively provide certain
services at [The Charlotte-Mecklenburg
Hospital Authority] facilities, including
but not limited to Charlotte Radiology,
P.A., Southeast Anesthesiology Consultants,
 -22-
P.A., Carolinas Pathology Group, P.A.,
Southeast Radiation Oncology Group, P.A.,
and Emergency Medicine Physicians, P.A. I
understand that these professional groups
are independent contractors, are not
employees or agents of [The Charlotte-
Mecklenburg Hospital Authority], and are not
subject to control or supervision by [The
Charlotte-Mecklenburg Hospital Authority] in
their delivery of professional services.

(emphasis added).

Next, plaintiff argues that the consent and authorization

forms are insufficient to defeat plaintiffs’ apparent agency

claim when contrasting it with the release form found in Ray v.

Forgy, __ N.C. App. __, 744 S.E.2d 468 (2013). We do not find

plaintiffs’ arguments persuasive.

In Ray, the issue before the Court was whether the

plaintiff patient looked to the hospital rather than the

individual medical provider, Dr. Forgy, to perform her

surgeries. Id. at __, 744 S.E.2d at 471. Our Court held that

there were no issues of material fact regarding apparent agency

where:

[b]efore [the patient’s procedures, the
patient] signed request for treatment forms.
In a section labeled “Designation(s),” she
checked the box labeled “Physician” and
wrote in “Dr. Forgy.” Additionally, [the
patient] separately checked a box labeled
“Grace Hospital Personnel.” [The patient’s
husband, who is also a plaintiff,] also
signed nearly identical consent forms
 -23-
before allowing a catheter to be placed and
allowing a drain to be put in his wife’s
abdomen. This suggests that [the patient]
looked to Dr. Forgy separate and distinct
from Grace Hospital and its personnel to
receive medical treatment.

Id. In addition, our Court found that the release form, in

large print just above the signature line, provided explicit

notice regarding the employment status of Grace Hospital

physicians:

that many of the physicians on the staff of
Grace Hospital are not employees or agents
of the hospital, but rather, are independent
contractors who have been granted the
privilege of using its facilities for the
care and treatment of patients. . . . My
signature below indicates that I have read
and understand the above information.

Id.

Plaintiffs contend that the Ray release document

specifically identified the physician who allegedly violated the

standard of care while here, there was “no identification of the

treating physician on the [h]ospital [d]efendants’ release form,

or a quantification of the likelihood of Mrs. Peter being

treated by an unidentified non-employee physician.” However,

our review reveals that Ms. Peter’s consent form separately

listed Dr. Anderson, the foot and ankle specialist of

OrthoCarolina, as the physician performing Ms. Peter’s operation
 -24-
on 22 December 2010 from the hospital CMC Mercy. As found in

Ray, this suggests that Ms. Peter looked to Dr. Anderson,

separate and distinct from CMC Mercy and its personnel, to

receive medical treatment. Although the consent and

authorization forms did not identify Dr. Vullo by name, the

consent form identified that “anesthesiologists . . . may not be

employed by or be agents of the hospital.” The authorization

form also provided that “certain independent professional

groups” were independent contractors and identified a non-

comprehensive list of the independent professional groups that

included Southeast Anesthesiology Consultants, P.A., a

predecessor to Dr. Vullo’s employer American Anesthesiology of

the Southeast, PLLC. Therefore, comparing the facts of Ray and

the facts in the case before us, we find them to be more

analogous than dissimilar as plaintiffs argue.

Because it is clear from the record that the hospital

defendants did not represent or hold out that the providers of

Ms. Peter’s anesthesia services were agents of the hospital

defendants, plaintiffs’ apparent agency arguments must fail.

See Holmes v. Univ Health Serv. Inc., 205 Ga. App. 602, 603,

423 S.E.2d 281, 283 (1992) (the plaintiff’s arguments that an

apparent agency relationship existed failed where forms that the
 -25-
plaintiff signed explicitly stated that “[p]hysicians providing

medical services within this hospital are not employees of

University Hospital. Each physician is an independent

contractor”); Cantrell v. Northeast Ga. Med Ctr., 235 Ga. App.

365, 365, 508 S.E.2d 716, 718 (1998) (no holding out by the

hospital of the doctor as anything but an independent contractor

where a sign over the registration desk advised patients that

the doctors were independent contractors and the consent for

treatment form also stated that “physicians . . . are not

hospital employees, but are independent contractors[.]”);

Compare with Jennison v. Providence St. Vincent Med. Ctr, 174

Or. App. 219, 234, 25 P.3d 358, 367 (2001) (finding that it was

reasonable for the patient to assume that the radiologist was a

hospital employee where nowhere on the consent form did it

indicate that the radiologists were independent contractors).

We affirm the order of the trial court granting summary judgment

in favor of the hospital defendants.

D. Loss of Consortium Claim

Because we hold that summary judgment was erroneously

entered as to plaintiffs’ claims of negligence against defendant

doctors, we also hold that Dr. Peter’s loss of consortium claim,

derivative of Ms. Peter’s negligence claim, should have survived
 -26-
a motion for summary judgment. The trial court erred in

granting summary judgment in favor of defendants on Dr. Peter’s

loss of consortium claim.

Reversed in part; affirmed in part.

Judges HUNTER, Robert C. and GEER concur.