Tuesday, July 15, 2008, 7:59 AM

COA Reaches Merits, Affirms Summary Judgment In Medical Negligence Case, Despite Appellate Procedure Errors

In Azar v. The Presbyterian Hospital, the COA today reached the merits of a medical negligence case despite the appellant's substantial violations of the rules of appellate procedure. The appellant's errors: 1) The record lacked a summons or personal jurisdiction statement; 2) The hearing transcript was missing; 3) Documents in the record didn't show their filing dates; 4) The assignments of error referenced the wrong record page; 5) The standard of review was misplaced; 6) Not all factual statements in the brief had record cites; and 7) The statement of facts was argumentative. The COA noted that the violations were non-jurisdictional, and therefore, pursuant to Dogwood, the NC SCT's recent and key appellate rules case (362 N.C. 191), the COA had to "determine 'whether [the] noncompliance with the appellate rules rises to the level of a substantial failure or gross violation[.]' If not, we are to address the merits of the appeal to the extent possible. If so, we may sanction the responsible party pursuant to Rules 25 and 34." Here, because of the number and nature of the violations, the COA held the violations to be "gross" or "substantial" and therefore taxed the appeal costs to the appellant's attorney.

The COA then went on to address the substance of the appellant estate administrator's challenge and held that because evidence of causation as to the medical negligence had not been demonstrated, the trial court rightfully granted summary judgment for the appellees. The COA held that the medical expert testimony as to whether bed sores caused the decedent's death was speculation -- even though the expert testified, among other things, that the improperly treated bed sores were a significant, but not sole, cause of an infection that ultimately caused the decedent's demise.

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