dissenting.
I disagree that genuine issues of material fact exist as to whether the requirements of N.C. Gen. Stat. § 90-321 were met before the naso-gastric tube was removed by court order in September 1991 and thus dissent.
Plaintiff submitted the affidavit of Dr. Frederic L. Romm and Lawrence Rettinger’s medical chart with its motion for summary judgment. In his affidavit, Dr. Romm states that:
12. Between March 1991 and June 1991, I never made the necessary findings nor documented any findings in the medical record that Mr. Rettinger was terminal or incurable or that the nasogas-tric tube constituted extraordinary means.
13. In June 1991, Hillhaven’s policy was not the reason that I did not order withdrawal of Mr. Rettinger’s nasogastric tube or make the findings required under the North Carolina Right to Natural Death Act. Given my understanding of the law and the advice of my attorney, I was not comfortable withdrawing the nasogastric tube from Mr. Rettinger without a court order.
14. In July 1991, I took a one-month leave of absence. Just prior to this leave of absence, I received a form from the Rettingers’ attorney, Mr. Norman Sloan, which stated that Mr. Rettinger’s condition was terminal and incurable and ordered removal of the nasogastric tube.
15. On June 25, 1991, I signed the form and returned it to Mr. Sloan ... I did not send a copy of the form to Hillhaven or ever communicate to Hillhaven that I had signed it. This form was never entered into Mr. Rettinger’s medical record. The findings in the form were also never confirmed by another physician.
17. As a result of the court’s order, I made findings in Mr. Rettinger’s medical record that his condition was terminal and incurable and that the nasogastric tube was extraordinary means. The findings were confirmed by another physician in the medical record. I then ordered removal of the tube and personally *608removed the nasogastric tube from Mr. Rettinger. Per my orders, Hillhaven fed Mr. Rettinger by mouth a liquid and then a puree diet.
The medical chart confirms Dr. Romm’s statement that he made no findings in the chart pursuant to N.C. Gen. Stat. § 90-321 until 4 October 1991, after the court’s order, and that on 5 October 1991, another physician confirmed Dr. Romm’s findings in the medical chart.
This evidence establishes that the three requirements of N.C. Gen. Stat. § 90-321 were not met until 5 October 1991, after the court ordered that the tube be removed. Assuming that the language of the form signed by Dr. Romm on 25 June 1991 conforms to the requirement of N.C. Gen. Stat. § 90-321(b)(l), defendant produced no evidence tending to show that defendant or her attorney informed plaintiff that Dr. Romm had made the requisite findings. Moreover, plaintiff’s evidence was in no way contradicted by defendant’s evidence that a second physician was willing to confirm Dr. Romm’s findings at the time he signed the form or by Judge Reingold’s September 1991 order containing a finding of fact that “Dr. Michael Adler, a colleague of Dr. Romm, saw and observed Mr. Rettinger in July, 1991, and it is Dr. Adler’s opinion, which this court accepts, that Mr. Rettinger has severe Parkinson’s disease and dementia and there is confirmation of Mr. Rettinger’s present condition by Dr. Adler.”
Since defendant failed to produce any evidence to contradict plaintiff’s evidence that the requirements were not met until 5 October 1991, there were no genuine issues of material fact as to whether the requirements of N.C. Gen. Stat. § 90-321 were met before the nasogastric tube was removed on 5 October 1991 pursuant to the court’s order in September 1991. Thus, summary judgment was properly granted in plaintiffs favor.