dissenting.
I believe the evidence before the trial court at the summary judgment hearing entitled Dr. Kilbride to a judgment in his favor based on section 122C-210.1 immunity. I, therefore, dissent.
Summary Judgment
While the majority refuses to address the correctness of the trial court’s denial of Dr. Kilbride’s motion for summary judgment, I believe the issue is properly before this Court and must be addressed.
Ordinarily, an improper “ ‘denial of a motion for summary judgment is not reversible error when the case has proceeded to trial and has been determined on the merits by the trier of the facts.’ ” Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 680, 340 S.E.2d 755, 757 (citation omitted), cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986). This is so because granting “ ‘a review of the denial of the summary judgment motion after a final judgment on the merits . . . would mean that a party who prevailed at trial after a complete presentation of evidence by both sides with cross-examination could be deprived of a favorable verdict,’ ” thus allowing “ ‘a verdict reached after the presentation of all the evidence to be overcome by a limited forecast of the evidence.’ ” Id. at 681, 340 S.E.2d at 757 (citation omitted).
In this case, the logic behind refusing to review denials of summary judgment motions does not apply as Dr. Kilbride, the party moving for summary judgment, received a favorable verdict after a trial on the merits. In addition, Dr. Kilbride has not appealed the trial court’s denial of his summary judgment motion but has cross-assigned error to that denial because it deprives him “of an alternative basis in law for supporting the judgment.” See N.C.R. App. P. 10(d). Thus, if summary judgment had been granted in favor of Dr. Kilbride, the result would have been the same as the trial court’s final judgment.
With respect to Dr. Kilbride’s ability to appeal the denial of his summary judgment motion, this Court has specifically held that the denial of a summary judgment motion raising a qualified immunity defense affects a substantial right and is immediately appealable. Rousselo v. Starling, 128 N.C. App. 439, 443, 495 S.E.2d 725, 728, appeal dismissed and disc, review denied, 348 N.C. 74, 505 S.E.2d 876 (1998). Even though Dr. Kilbride was entitled to an immediate *617appeal based on a substantial right, he was not required to immediately appeal the trial court’s denial of his summary judgment motion. See Dep’t of Transp. v. Rowe, 351 N.C. 172, 176, 521 S.E.2d 707, 710 (1999) (where “a party is entitled to an interlocutory appeal based on a substantial right, that party may appeal but is not required to do so”). Thus, Dr. Kilbride was not required to immediately appeal the trial court’s denial of his summary judgment motion, but he could wait for final judgment and timely appeal the interlocutory order. See Floyd and Sons, Inc. v. Cape Fear Farm Credit, 350 N.C. 47, 51, 510 S.E.2d 156, 159 (1999).
Immunity
At the time plaintiff’s cause of action arose, North Carolina General Statutes provided:
No facility or any of its officials, staff, or employees, or any physician or other individual who is responsible for the examination, management, supervision, treatment, or release of a client and who follows accepted professional judgment, practice, and standards is civilly liable, personally or otherwise, for actions arising from these responsibilities or for actions of the client. This immunity is in addition to any other legal immunity from liability to which these facilities or individuals may be entitled.
N.C.G.S. § 122C-210.1 (Supp. 1985).4 This Court has interpreted section 122C-210.1 as providing immunity from liability as long as physicians’ decisions are “an exercise of professional judgment.” Alt v. Parker, 112 N.C. App. 307, 314, 435 S.E.2d 773, 777 (1993), cert. denied, 335 N.C. 766, 442 S.E.2d 507 (1994). This is so because in deciding what actions to take regarding a client, a facility’s staff “should not be required to make each decision in the shadow of an action for damages.” Youngberg v. Romeo, 457 U.S. 307, 325, 73 L. Ed. 2d 28, 43 (1982). It is not appropriate for the courts to decide “ ‘which of several professionally acceptable choices should have been made,’ ” id. at 321, 73 L. Ed. 2d at 41 (citation omitted); Alt, 112 N.C. App. at 314, 435 S.E.2d at 777, and although an expert’s opinion may differ from the judgment exercised by the professional, that opinion “represents only another ‘professionally acceptable choice,’ ” *618Alt, 112 N.C. App. at 316, 435 S.E.2d at 778. Therefore, if a decision is made by a professional, it “is presumptively valid,” and “liability may be imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, practice, or standards as to demonstrate that the person responsible actually did not base the decision on such a judgment.” Youngberg, 457 U.S. at 323, 73 L. Ed. 2d at 42. In other words, liability can be imposed only if “the decision was ‘so completely out of professional bounds as to make it explicable only as an arbitrary, nonprofessional one. This standard appropriately defers to the necessarily subjective aspects of the decisional process of institutional medical professionals.’ ” Patten v. Nichols, 274 F.3d 829, 845 (4th Cir. 2001) (citation omitted); see also Shaw v. Strackhouse, 920 F.2d 1135, 1146 (3d Cir. 1990) (professional judgment “falls somewhere between simple negligence and intentional misconduct”).
According to Dr. Kilbride’s deposition testimony, he evaluated Mark consistent with his normal methods and the procedures of Broughton Hospital. In addition, Dr. Kilbride presented depositions from several experts stating their diagnosis of Mark would have been similar to Dr. Kilbride’s diagnosis and in their professional opinion, they did not believe Mark met the requirements for involuntary commitment under North Carolina law. Moreover, the experts testified Dr. Kilbride’s diagnosis of Mark was not unreasonable. Assuming plaintiff had experts stating Dr. Kilbride’s release of Mark was error, that is but “another ‘professionally acceptable choice.’ ” Thus, no genuine issues of material fact were raised by the evidence at the summary judgment hearing and Dr. Kilbride was entitled to a judgment as a matter of law. There is no evidence in the record that Dr. Kilbride substantially departed from accepted professional judgment or that his judgment was arbitrary or unprofessional. Accordingly, the trial court erred in denying his motion for summary judgment based on section 122C-210.1 immunity. I, therefore, would not address the issues raised by plaintiff’s appeal.5
. This section was amended in 1995, effective 1 January 1997 and applicable to commitments on or after that date, to insert “custody” in the first sentence before “examination” and added “and applies to actions performed in connection with, or arising out of, the admission or commitment of any individual pursuant to this Article” in the second sentence after “entitled.” 1995 N.C. Sess. Laws ch. 739, § 3.
. Plaintiff argues that even if section 122C-210.1, as it presently reads, is construed to provide immunity to Dr. Kilbride, the version of that statute in effect in 1995 did not provide immunity. I disagree. In 1995, the legislature did add a sentence specifically granting immunity to a physician admitting a person to a mental health institution. The prior version of the statute, however, extended immunity to any physician responsible for a client’s “examination,” and the admission process necessarily involved an examination of the client. The amendment of section 122C-210.1 must, therefore, be read as simply clarifying the statute, not altering or providing for additional immunity. See Davis v. N.C. Dep’t of Human Resources, 121 N.C. App. 105, 114-15, 465 S.E.2d 2, 8 (1995) (legislative amendment may be viewed as clarifying the law, not changing it), disc. review denied, 343 N.C. 750, 473 S.E.2d 612 (1996).