*********** 1. This medical malpractice action stems from the treatment and care offered to Betsey Allen Derr Urquhart, while she was a patient at Pitt County Memorial Hospital. Plaintiff has alleged that physicians employed by defendant failed to render necessary medical care, and that this failure proximately caused the death of Ms. Urquhart. Defendant has denied these allegations.
2. Identical to the assertions in its tort claim, plaintiff filed a previous lawsuit in Superior Court in Pitt County (00 CVS 1685) against individual medical care providers, alleging *Page 2 malpractice that proximately caused the death of Ms. Urquhart. The individuals named in the Superior Court matter were the same as those named as negligent employees in the tort claim.
3. On or about 24 March 2005, the Superior Court matter (00 CVS 1685) was dismissed when plaintiff failed to provide evidence of malpractice sufficient to proceed to trial. The Order to dismiss with prejudice was entered on 24 March 2005 by the Honorable Judge Clifton W. Everett, Jr., who ruled that neither Vincent Sorrell, M.D., William C. Reeves, M.D, Patrick J. Digaicomo, M.D., nor "John or Jane Doe" Lewis, M.D. committed medical malpractice, or were otherwise negligent in their care of Ms. Urquhart. These individuals are the same individuals named in plaintiff's tort claim as the negligent employees. The Superior Court dismissal with prejudice was a complete and final adjudication on the merits.Herring v. Winston-Salem/Forsyth County Bd. of Educ.,188 N.C.App. 441, 656 S.E.2d 307 (2008).
4. Based upon the adjudication of the Superior Court matter, and in light of the duplication of allegations and necessary issues of negligence and medical malpractice in plaintiff's tort claim and the privity of the parties, there remains no additional issues of material fact for the Industrial Commission's consideration, and plaintiff is collaterally estopped from alleging medical negligence by defendant through alleged medical malpractice of its employees under the State Tort Claims Act. Id. (See also Williams v.City of Jacksonville Police Dept.,165 N.C.App. 587, 599 S.E.2d 422 (2004).
5. Plaintiff's claim is hereby DISMISSED WITH PREJUDICE.
This the 1st day of July 2010. *Page 3
S/___________________ STACI T. MEYER COMMISSIONER
CONCURRING:
S/___________________ CHRISTOPHER SCOTT COMMISSIONER
S/___________________ DANNY L. McDONALD COMMISSIONER