IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-530
Filed: 15 November 2016
Scotland County, No. 15 CVS 460
JESSIE NORTON, in her individual capacity and in her capacity as the executor of
the Estate of NORMAN CHRISTOPHER NORTON, WILLIAM NORTON, and
DANIEL MICHAEL NORTON, Plaintiffs,
v.
SCOTLAND MEMORIAL HOSPITAL, INC., and DUKE UNIVERSITY HEALTH
SYSTEM, INC., Defendant.
Appeal by plaintiffs from order entered 23 February 2016 by Judge Richard T.
Brown in Scotland County Superior Court. Heard in the Court of Appeals 3 October
2016.
Peterkin Law Firm, PLLC, by Timothy J. Peterkin, for plaintiff-appellants.
Brotherton Ford Berry & Weaver, PLLC, by Robert A. Ford and Demetrius W.
Berry, for defendant-appellee Scotland Memorial Hospital, Inc.
Young Moore and Henderson, P.A., by Angela Farag Craddock, Donna Renfrow
Rutala, and David A. Senter, for defendant-appellee Duke University Health
System, Inc.
TYSON, Judge.
Plaintiffs appeal from the trial court’s order dismissing their complaint under
Rules 9(j) and 12(b)(6) of the Rules of Civil Procedure against defendants, Scotland
Memorial Hospital, Inc. (“Scotland Memorial”) and Duke University Health System,
Inc. (“Duke Hospital”). We affirm in part, reverse in part, and remand.
NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
I. Background
Norman Christopher Norton was admitted to Scotland Memorial in
Laurinburg, North Carolina on 9 July 2012 with complaints of abdominal pain. Mr.
Norton was married to plaintiff Jessie Norton, and is the father of the couple’s two
children, also plaintiffs. Mr. Norton was fairly active and in good health.
While a patient at Scotland Memorial, Mr. Norton’s condition worsened. He
was transferred to the intensive care unit, placed on a ventilator, and subsequently
died. It is unclear from the face of the complaint whether Mr. Norton died at Scotland
Memorial or after he was transferred to Duke University Hospital in Durham, North
Carolina. Duke Hospital’s responsive pleading states Mr. Norton’s deceased body
was transferred to Duke Hospital on 11 July 2012. Scotland Memorial’s responsive
pleading states Mr. Norton’s body was transferred to Duke Hospital on 12 July 2012.
Plaintiffs filed a complaint against Scotland Memorial and Duke Hospital on
10 July 2015. Plaintiffs allege Mr. Norton screamed and cried out several times for
his wife and children, but Scotland Memorial staff refused to allow Mr. Norton’s wife
or family to see him.
The complaint alleges Mr. Norton’s cries were so loud and adamant that other
visitors in the waiting room commented. Mrs. Norton informed staff that she had
waited an excessive amount of time to see her husband. Staff members sat beside
her in the waiting room, but refused to allow her to see her husband. The complaint
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Opinion of the Court
further alleges that neither Mr. Norton nor Mrs. Norton gave permission for Mr.
Norton to be removed from the ventilator.
The complaint further alleges Duke Hospital staff asked Mrs. Norton if she
wished for an autopsy to be performed, and she responded in the affirmative. The
complaint alleges Mrs. Norton requested for Mr. Norton’s head not to be cut during
the autopsy. She had previously discussed this issue with Mr. Norton, and he had
indicated it was important to him. Duke Hospital staff informed Mrs. Norton they
were required to cut Mr. Norton’s head based upon the orders received from Scotland
Memorial.
The complaint also alleges Mr. Norton had previously agreed to be an organ
donor, but declined to remain an organ donor when he renewed his driver’s license.
He had also discussed this issue with Mrs. Norton. Mrs. Norton was informed by the
funeral home that Mr. Norton’s organs and eyes had been removed from his body.
Plaintiffs’ complaint alleges five causes of action against both defendants: (1)
negligent infliction of emotional distress; (2) intentional infliction of emotional
distress; (3) loss of consortium; (4) negligence; and (5) wrongful death. Both
defendants filed motions to dismiss under Rule 12(b)(6) for failure to state a claim
upon which relief may be granted and under Rule 9(j) for failure to plead that a
qualified expert had reviewed the medical care and records prior to filing the
complaint.
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NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
On 23 February 2016, the trial court dismissed Plaintiffs’ claims against both
defendants with prejudice for failure to comply with the requirements of Rule 9(j).
The court also concluded Plaintiffs’ wrongful death claims against the defendants
were barred by the statute of limitations, and dismissed those claims under Rule
12(b)(6). The trial court also dismissed Plaintiffs’ remaining claims under 12(b)(6)
for failure to state a claim upon which relief may be granted. Plaintiffs appeal.
II. Dismissal of Plaintiffs’ Claims
The trial court dismissed Plaintiffs’ claims under three separate grounds: (1)
failure to meet the requirements of Rule 9(j) for the medical malpractice claims; (2)
failure to file the complaint within the applicable statute of limitations for the
wrongful death and loss of consortium claims; and (3) failure to state a claim under
Rule 12(b)(6).
A. Standards of Review
A trial court’s order dismissing a complaint pursuant to Rule 9(j) presents a
question of law, and is therefore reviewed de novo on appeal. Barringer v. Wake Forest
Univ. Baptist Med. Ctr., 197 N.C. App. 238, 256, 677 S.E.2d 465, 477, disc. review
denied, 363 N.C. 651, 684 S.E.2d 690 (2009).
On appeal from a motion to dismiss under Rule 12(b)(6),
this Court reviews de novo “whether, as a matter of law,
the allegations of the complaint . . . are sufficient to state a
claim upon which relief may be granted [.]” We consider
the allegations in the complaint true, construe the
complaint liberally, and only reverse the trial court’s denial
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Opinion of the Court
of a motion to dismiss if plaintiff is entitled to no relief
under any set of facts which could be proven in support of
the claim.
Christmas v. Cabarrus Cty., 192 N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008)
(quoting Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987)), disc.
review denied, 363 N.C. 372, 678 S.E.2d 234 (2009).
B. Dismissal of Wrongful Death and Loss of Consortium Claims
1. Rule 9(j)
The trial court determined Plaintiffs had brought a “medical malpractice
action” as defined by N.C. Gen. Stat. § 90-21.11, and dismissed all of Plaintiffs’ claims
for failure to comply with Rule 9(j).
Rule 9(j) of the North Carolina Rules of Civil Procedure requires dismissal of
any complaint alleging medical malpractice, unless the pleading asserts a medical
expert has reviewed the medical care and records, and would testify that the medical
care did not comply with the applicable standard of care set forth in N.C. Gen. Stat.
§ 90-21.12. N.C. Gen. Stat. § 1A-1, Rule 9(j) (2015). A “medical malpractice action” is
defined as either of the following:
a. A civil action for damages for personal injury or death
arising out of the furnishing or failure to furnish
professional services in the performance of medical, dental,
or other health care by a health care provider.
b. A civil action against a hospital . . . for damages for
personal injury or death, when the civil action (i) alleges a
breach of administrative or corporate duties to the patient,
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Opinion of the Court
including, but not limited to, allegations of negligent
credentialing or negligent monitoring and supervision and
(ii) arises from the same facts or circumstances as a claim
under sub-subdivision a. of this subdivision.
N.C. Gen. Stat. § 90-21.11(2) (2015).
“Rule 9(j) unambiguously requires a trial court to dismiss a complaint if the
complaint’s allegations do not facially comply with the rule’s heightened pleading
requirements.” Barringer, 197 N.C. App. at 255, 677 S.E.2d at 477.
Plaintiffs’ loss of consortium claim is derivative of, and relies upon the validity
of the spouse’s claim for injury or wrongful death. See, e.g., Sloan v. Miller Building
Corp., 128 N.C. App. 37, 40, 493 S.E.2d 460, 462 (1997). Plaintiffs have failed to show
how their claims for wrongful death and loss of consortium do not arise from medical
malpractice under the definitions set forth in N.C. Gen. Stat. § 90-21.11(2), which
require a Rule 9(j) medical expert’s certification. The trial court properly dismissed
Plaintiffs’ wrongful death and loss of consortium claims due to failure to comply with
Rule 9(j).
2. Statute of Limitations
In addition to dismissing the wrongful death and loss of consortium claims
under Rule 9(j), the trial court determined the claims were also barred by the
applicable statute of limitations. N.C. Gen. Stat. § 1-53(4) (2015). Plaintiffs have not
challenged the trial court’s dismissal based upon expiration of the applicable statute
of limitations. Any argument challenging the trial court’s dismissal of those claims
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NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
based upon the statute of limitations is abandoned. N.C. R. App. P. 28(b)(6). The trial
court’s unchallenged dismissal of the wrongful death and loss of consortium actions
under Rule 12(b)(6) for failure to file the claims within the statute of limitations
remains undisturbed.
C. Negligence and Negligent Infliction of Emotional Distress
Plaintiffs argue the negligence and negligent infliction of emotional distress
claims are not “medical malpractice” claims and do not require a Rule 9(j)
certification. Plaintiffs argue those claims are related to “how [Mr. Norton] was
prevented from seeing his family as he was dying and the unauthorized autopsy and
the displacement of [Mr. Norton’s] organs.”
Regardless of whether those claims require a Rule 9(j) certification, Plaintiffs
failed to challenge the trial court’s dismissal of these negligence claims pursuant to
Rule 12(b)(6) for failure to state a claim. Any argument challenging the trial court’s
dismissal of those claims under Rule 12(b)(6) is abandoned. N.C. R. App. P. 28(b)(6).
The trial court’s unchallenged dismissal of those causes of actions under Rule 12(b)(6)
remains undisturbed.
D. Intentional Infliction of Emotional Distress (“IIED”)
Plaintiffs challenge the trial court’s dismissal of the IIED claims against the
defendants under both Rules 9(j) and 12(b)(6).
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NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
To state a claim for intentional infliction of emotional distress, a plaintiff must
allege: “(1) extreme and outrageous conduct (2) which is intended to cause and does
cause (3) severe emotional distress to another.” Dickens v. Puryear, 302 N.C. 437, 452,
276 S.E.2d 325, 335 (1981). Extreme and outrageous conduct is defined as conduct
that is “so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized community.” Smith-Price v. Charter Behavioral Health Sys., 164 N.C.
App. 349, 354, 595 S.E.2d 778, 782 (2004) (citation omitted).
Our appellate courts have “set a high threshold for finding that conduct meets
the standard.” Dobson v. Harris, 134 N.C. App. 573, 578, 521 S.E.2d 710, 715 (1999),
rev’d on other grounds, 352 N.C. 77, 530 S.E.2d 829 (2000).
This tort imports an act which is done with the intention of
causing emotional distress or with reckless indifference to
the likelihood that emotional distress may result. A
defendant is liable for this tort when he desires to inflict
severe emotional distress or knows that such distress is
certain, or substantially certain, to result from his conduct
or where he acts recklessly in deliberate disregard of a high
degree of probability that the emotinal [sic] distress will
follow and the mental distress does in fact result.
Dickens, 302 N.C. at 449, 276 S.E.2d at 333 (citations, quotations, and ellipsis
omitted) (emphasis supplied).
“[T]he initial determination of whether conduct is extreme and outrageous is a
question of law for the court: ‘If the court determines that it may reasonably be so
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Opinion of the Court
regarded, then it is for the jury to decide whether, under the facts of a particular case,
defendants’ conduct . . . was in fact extreme and outrageous.’ ” Johnson v. Bollinger,
86 N.C. App. 1, 6, 356 S.E.2d 378, 381-82 (1987) (quoting Briggs v. Rosenthal, 73 N.C.
App. 672, 676, 327 S.E.2d 308, 311 (1985)).
1. Scotland Memorial
a. Rule 9(j) Requirement
Plaintiffs argue a Rule 9(j) certification was not required for this claim, because
the allegations do not involve an injury to Mr. Norton or concern his medical
treatment or death. Instead, the injuries to Plaintiffs stem from Scotland Memorial
staff’s failure and refusal to allow Mrs. Norton and her children to see their husband
and father as he was crying out in distress prior to his death. We agree.
Plaintiff’s complaint alleges:
10. There were several times that Mr. Norton screamed
and cried out for his wife and children to come back with
him.
11. The staff at Scotland refused to allow Mr. Norton’s
family to see him. His cries were so loud and adamant that
visitors in the waiting area commented on it.
12. At one point, Jessie Norton advised the hospital staff
that she had waited an excessive amount of time to see her
husband and she wanted to see him. At that point, staff
members came and sat beside her and refused to let her see
her husband.
. . . .
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NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
23. The frustration regarding not being about [sic] to be
there for Mr. Norton has haunted his family, causing
emotional distress that has occasionally manifested into
physical symptoms.
The complaint further alleges Mr. Norton was thereafter removed from the ventilator
without his or Mrs. Norton’s consent and died.
As discussed above, a Rule 9(j) certification is required in a “medical
malpractice” action, which is defined as “a civil action for damages for personal injury
or death arising out of the health care provider’s furnishing or failure to furnish
professional services,” or “breach of an administrative or corporate dut[y] to the
patient.” N.C. Gen. Stat. § 90-21.11(2).
The allegations against Scotland Memorial regarding the staff’s refusal to
allow Mrs. Norton and her children to see Mr. Norton as he was distressed and crying
out for them prior to the unconsented removal of the ventilator occurred while
Scotland Memorial rendered medical services to Mr. Norton. Plaintiffs’ claims for
IIED against Scotland Memorial do not seek damages arising from allegations of Mr.
Norton’s “personal injury or death.” Id. The damages claimed by Plaintiffs are not
damages sustained by Mr. Norton. Rather, Plaintiffs, Mr. Norton’s wife and children,
claim they sustained emotional damage by hearing Mr. Norton call out to them prior
to his death, and from being prevented from seeing him, coupled with the
unconsented to removal of the ventilator. These unique and specific factual
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Opinion of the Court
allegations do not fall under the plain language of Rule 9(j) to require a medical
expert’s certification. Id.
b. Rule 12(b)(6) Dismissal
“A complaint should not be dismissed under Rule 12(b)(6) ‘unless it
affirmatively appears that plaintiff is entitled to no relief under any state of facts
which could be presented in support of the claim.’” Ladd v. Estate of Kellenberger, 314
N.C. 477, 481, 334 S.E.2d 751, 755 (1985) (quoting Presnell v. Pell, 298 N.C. 715, 719,
260 S.E.2d 611, 613 (1979)) (emphasis supplied). “The system of notice pleading
affords a sufficiently liberal construction of complaints so that few fail to survive a
motion to dismiss.” Id. “Such simplified notice pleading is made possible by the
liberal opportunity for discovery and the other pretrial procedures established by the
Rules to disclose more precisely the basis of both claim and defense and to define
more narrowly the disputed facts and issues.” Pyco Supply Co., Inc. v. American
Centennial Ins. Co., 321 N.C. 435, 442-43, 364 S.E.2d 380, 384 (1988) (citation
omitted).
Under the notice pleading standard, the face of Plaintiffs’ complaint does not
reveal an insurmountable bar to recovery on the allegations of IIED against Scotland
Memorial for us to sustain the dismissal under Rule 12(b)(6). The allegations and
circumstances surrounding Scotland Memorial’s refusal to allow Mr. Norton’s family
to see him, and the hospital’s reasonableness and justification, or lack thereof, and
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NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
the consequences to the family are issues “for discovery and the other pretrial
procedures.” Id. at 444, 364 S.E.2d at 384.
Plaintiffs’ IIED claims may later be determined to be insufficient to go to the
jury, but that issue is not before us. Based solely upon the allegations on the face of
their complaint, Plaintiffs should be provided the opportunity, afforded by the Rules
of Civil Procedure, to discover and “to disclose more precisely the basis of both claim
and defense and to define more narrowly the disputed facts and issues.” Id. The trial
court’s dismissal under Rule 12(b)(6) of Plaintiff’s IIED allegation against Scotland
Memorial was premature, and is reversed.
2. Duke Hospital
a. Rule 9(j) Requirement
Plaintiffs’ complaint alleges Mr. Norton was admitted as a patient and treated
at Scotland Memorial, and “at some point, Mr. Norton was transferred to Duke.” The
complaint alleges:
15. Duke asked Mrs. Norton if she wanted an autopsy for
Mr. Norton and she responded in the affirmative.
16. Mrs. Norton was asked on multiple occasions if she
wanted an autopsy.
17. Mrs. Norton asked Duke if they would avoid cutting
Mr. Norton’s head open. This was an issue that she and
Mr. Norton had discussed. This was an important issue
to him.
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NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
18. Mrs. Norton was informed by Duke that they had to
open his head because it was ordered by Scotland.
19. Mr. Norton had been an organ donor. However, when
he renewed his most recent driver’s license, he declined to
be an organ donor. This was an important issue that he
had addressed with his wife prior to his death.
20. At some point, Mr. Norton’s previous driver’s license
was taken, not the most recent driver’s license that
indicated that he would not agree to be an organ donor.
21. When Mr. Norton’s body arrived at the funeral home,
his organs had been removed and were never returned.
22. Mrs. Norton was dealt with rudely as she sought to
locate her husband’s organs and eyes.
. . . .
24. The misappropriation of Mr. Norton’s organs has also
created frustration, additional grief and emotional distress
for his family.
Plaintiffs’ claims against Duke Hospital pertain to alleged actions by Scotland
Memorial and Duke Hospital after Mr. Norton’s death, and do not involve the
provision of medical care under N.C. Gen. Stat. § 90-21.11. A medical expert’s
certification under Rule 9(j) was not required to validate Plaintiffs’ IIED claim
against Duke Hospital, after Mr. Norton was deceased and the allegations against
Duke Hospital pertain to the autopsy and removal of organs. See Bennett v. Hospice
& Palliative Care Ctr. of Alamance-Caswell, __ N.C. App. __, 783 S.E.2d 260 (2016)
(holding claims which occurred subsequent to the decedent’s death, mishandling the
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NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
body and failure to provide bereavement services, did not involve the provision of
medical care to require a Rule 9(j) certification).
b. Rule 12(b)(6) Dismissal
Regardless of whether a Rule 9(j) certification was required for Plaintiffs’ claim
against Duke Hospital, Plaintiffs failed to state and plead sufficient facts to allege
extreme and outrageous conduct by Duke Hospital or its staff. Accepting Plaintiffs’
factual allegations against Duke Hospital as true and in the light most favorable to
Plaintiffs with the benefit of every reasonable inference, the complaint indicates the
autopsy was ordered by Scotland Memorial. Mrs. Norton was asked to consent and
authorized Duke Hospital to perform an autopsy, but requested Duke Hospital to
refrain from cutting Mr. Norton’s head. Duke Hospital informed Mrs. Norton that
such a procedure would be required under Scotland Memorial’s order. The complaint
does not indicate or assert whether Mrs. Norton then attempted to limit or prevent
the autopsy, or whether Mr. Norton’s head was in fact cut during the course of the
autopsy. The complaint does not allege whether Duke Hospital performed the
autopsy, and only describes Mrs. Norton’s conversation with Duke Hospital staff,
when she consented to the autopsy.
Plaintiffs also allege Mr. Norton’s organs were removed, even though his most
recent driver’s license indicated he did not consent to organ donation. Taking
Plaintiffs’ allegations as true, the complaint indicates Duke Hospital was in
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NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
possession of Mr. Norton’s previous driver’s license, which indicated he had agreed to
be an organ donor, and not his most recent driver’s license, which did not so indicate.
Our law recognizes that the next of kin has a quasi-
property right in the body – not property in the commercial
sense but a right of possession for the purpose of burial –
and that there arises out of this relationship to the body an
emotional interest which should be protected and which
others have a duty not to injure intentionally or negligently
. . . . Furthermore, the survivor has the legal right to bury
the body as it was when life became extinct. Kyles v. R. R.,
supra [147 N.C. 394, 61 S.E. 278]. For any mutilation of a
dead body the one entitled to its custody may recover
compensatory damages for his mental suffering caused
thereby if the mutilation was either intentionally or
negligently committed, Morrow v. R. R., 213 N.C. 127, 195
S.E. 383, or was done by an unlawful autopsy. If
defendant’s conduct was wilful or wanton, actually
malicious, or grossly negligent, punitive damages may also
be recovered. Kyles v. R. R., supra.”
Parker v. Quinn-McGowen Co., 262 N.C. 560, 561-62, 138 S.E.2d 214, 215-16 (1964)
(emphasis supplied).
The complaint fails to allege whether Duke Hospital knew or should have
known about Mr. Norton’s change in status as an organ donor, or whether Duke
Hospital intentionally disregarded his status as an organ donor. Plaintiffs’ have
failed to allege facts to show Duke Hospital acted with intention to cause emotional
distress or with reckless indifference to the likelihood that emotional distress may
result, or “kn[ew] that such distress is certain, or substantially certain, to result.
Dickens, 302 N.C. at 449, 276 S.E.2d at 333. Plaintiffs’ complaint does not indicate
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NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
the conduct by Duke Hospital staff in performing the autopsy with Mrs. Norton’s
consent and the handling of Mr. Norton’s organs was “beyond all possible bounds of
decency, . . . atrocious, and utterly intolerable in a civilized community.” Smith-Price,
164 N.C. App. at 354, 595 S.E.2d at 782. See Hardin v. York Mem’l Park, 221 N.C.
App. 317, 327, 730 S.E.2d 768, 777 (holding children of deceased parents failed to
sufficiently plead extreme and outrageous conduct to support IIED claim against
cemetery, where cemetery sold family burial plots to third parties and their mother
was unable to be buried next to their father), disc. review denied, 366 N.C. 571, 738
S.E.2d 376 (2012). The trial court properly dismissed Plaintiffs’ IIED claim against
Duke Hospital. Plaintiffs’ arguments are overruled.
IV. Conclusion
Even were we to presume a Rule 9(j) certification is not required for some or
all of the claims Plaintiffs raised in their complaint, the trial court’s Rule 12(b)(6)
dismissal of all claims, except the intentional infliction of emotion distress claim, is
unchallenged and remains undisturbed. The trial court’s Rule 12(b)(6) dismissal of
Plaintiffs’ IIED claim against Scotland Memorial was premature, and is reversed.
The trial court did not err in dismissing the IIED claim against Duke Hospital under
Rule 12(b)(6). The trial court’s order is affirmed in part, reversed in part, and
remanded.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
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NORTON V. SCOTLAND MEM. HOSP., INC.
Opinion of the Court
Chief Judge MCGEE and Judge DIETZ concur.
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