dissenting in part.
As (I) the trial court erred in failing to consider lesser sanctions for plaintiff’s discovery misconduct and (II) I disagree with the majority that this action was solely a medical malpractice action, I dissent in part.
I
In this case, the trial court’s exclusion of plaintiff’s experts had the same effect as a dismissal of plaintiff’s medical malpractice action. While the imposition of sanctions for discovery misconduct is within the discretion of the trial court, this Court has held that before the trial court selects as severe a sanction as dismissal, it must first determine the appropriateness of lesser sanctions. Wilder v. Wilder, 146 N.C. App. 574, 577, 553 S.E.2d 425, 427 (2001). In other words, the trial court must make findings and conclusions indicating it has considered less drastic sanctions. Id. Less drastic sanctions in this case could have included staying further proceedings until plaintiff complied with the trial court’s order, finding plaintiff in contempt of court, or requiring plaintiff to pay the reasonable expenses, including attorney’s fees, caused by his failure to comply. See N.C.G.S. § 1A-1, Rule 37(b)(2) (2001) (available sanctions for failure to obey Rule 26(f) discovery conference order).
In this case, the trial court made no findings with respect to the appropriateness of lesser sanctions. As such, the trial court’s exclusion of plaintiff’s experts and its resulting grant of summary judgment with respect to plaintiff’s medical malpractice action must be reversed and remanded for consideration of lesser sanctions.
II
Even if the trial court’s exclusion of plaintiff’s experts was justified, this Court still would need to consider whether summary judgment with respect to defendants Sheriff Ronald Barker, Chief Jailer *453Michael Schweitzer, and the Hartford Insurance Company was appropriate as plaintiffs suit against these defendants was not a medical malpractice action.
A medical malpractice action is defined as “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.” N.C.G.S. § 90-21.11 (2001). None of the aforementioned defendants can be considered a health care provider. See id. (defining a health care provider). Furthermore, plaintiff does not allege the jail personnel, as opposed to the medical personnel available at the correctional facility, failed to furnish professional medical services which they were capable of rendering. Instead, plaintiff argues the jail personnel failed to fulfil their fiduciary and statutory duties under N.C. Gen. Stat. § 160A-59 et seq. and the North Carolina Constitution by not timely bringing his medical needs to the attention of a designated health care provider.
As plaintiff’s action against the jail itself does not constitute a medical malpractice action, it is of no consequence that, as stated by the majority, upon exclusion of plaintiffs experts by the trial court, plaintiff was not able to meet the evidentiary burden required in a medical malpractice action. See Huffman v. Inglefield, 148 N.C. App. 178, 182, 557 S.E.2d 169, 172 (2001) (in medical malpractice actions, the plaintiff must “demonstrate by the testimony of a qualified expert that the treatment administered by the defendant was in negligent violation of the accepted standard of medical care in the community and that [the] defendant’s treatment proximately caused the injury”). Accordingly, summary judgment in favor of the sheriff, the chief jailer, and the jail’s insurer on this basis alone would be error.
Where the trial court, however, grants a motion for summary judgment without delineating its reasons for doing so, as the trial court did in this case, this Court must determine whether there is any basis for upholding the trial court’s order. Because I agree with the majority that there are no genuine issues of material fact with respect to plaintiff’s negligence claim against the sheriff, the chief jailer, and the jail’s insurer, I would therefore affirm summary judgment with respect to these defendants.