NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 6 November 2012

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1 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e. NO. COA NORTH CAROLINA COURT OF APPEALS Filed: 6 November 2012 THE ESTATE OF CHRISTOPHER JAMES WATSON, TOMMIE PURYER WATSON, ADMINISTRATRIX, Plaintiff, v. Franklin County No. 10 CVS 1262 DAVID JAMES KING, M.D. and TRIANGLE MEDICAL CLINIC, P.A. d/b/a LOUISBURG INTERNAL MEDICINE, Defendants. Appeal by plaintiff from order entered 22 December 2011 by Judge Robert H. Hobgood in Franklin County Superior Court. Heard in the Court of Appeals 8 October Bryant Duke Paris III, P.L.L.C., by Bryant Duke Paris III, for plaintiff appellant. Yates, McLamb & Weyher, L.L.P., by Kathrine E. Fisher and John W. Minier, for defendants appellees. MARTIN, Chief Judge. Plaintiff Tommie Puryear 1 Watson ( Mrs. Watson ), as the 1 Although the caption on the order from which plaintiff appeals indicates that her maiden name is Puryer, the record reflects

2 -2- administratrix of the estate of her late husband Christopher James Watson ( Mr. Watson ), appeals from the trial court s order granting summary judgment in favor of defendants David James King, M.D. ( Dr. King ) and Triangle Medical Clinic, P.A. d/b/a Louisburg Internal Medicine ( Louisburg Internal Medicine ), and dismissing plaintiff s complaint with prejudice. We affirm. On 16 May 2006, Mr. Watson visited Dr. King at Louisburg Internal Medicine seeking treatment for recurring lower back pain that Mr. Watson suffered as a result of an injury he is alleged to have sustained ten years prior. Upon the conclusion of his examination, Dr. King diagnosed Mr. Watson with low back pain and prescribed 5 milligrams of Percocet four times a day as needed for pain. On this same day, Mr. Watson signed a Pain Management Agreement, in which he agreed, among other things, to use [his] medicine at a rate no greater than the prescribed rate and that use of [his] medicine at a greater rate [would] result in [his] being without medication for a period of time. Mr. Watson returned to Dr. King on 16 June, 20 July, and 14 August 2006 complaining of continued low back pain, for which Dr. King prescribed the same Percocet dosage at each successive visit. Mr. Watson then returned to Dr. King one week after his that her name is Puryear.

3 -3-14 August appointment to request a different medication because the Percocet was failing ; Dr. King discontinued the Percocet and instead prescribed 10 milligrams of methadone four times a day as needed for pain. Mr. Watson continued to visit Dr. King monthly throughout fall 2006 for his low back pain which, according to Dr. King s medical notes, still hurt[] like H _ and Dr. King continued to prescribe the same methadone dosage at each successive visit. About two days before Mr. Watson s 13 December 2006 appointment with Dr. King, Mrs. Watson telephoned Dr. King s office to report that she thought there was a problem with her husband s prescription medications counteracting [sic] with each other, because she started noticing differences in her husband s sleeping and eating habits, and because his speech was sometimes slurred and his mobility slowed. When Mr. Watson returned home from his 13 December appointment with another prescription for the same dosage of methadone as was prescribed in the months prior Mr. Watson told his wife that Dr. King had said that an anonymous caller contacted his office to report that Mr. Watson was abusing his medicine. When Mrs. Watson told her husband that she had called Dr. King s office, Mr. Watson denied that he was abusing his prescription medication. Mrs. Watson then told her husband that, when she looked in the

4 -4- bottle for the prior month s methadone prescription, she determined that what he should have had in the bottle was not what he had in the bottle. In response, Mr. Watson offered, Well, some of [the methadone pills] are at work in my tool bag. I don t take the bottle to work. And so that s why there s not as many in here as there should be. According to Mrs. Watson, [t]hat satisfied [her] as far as [her] thinking maybe [Mr. Watson] wasn t really wasn t abusing [the methadone]. Because Mr. Watson wanted Dr. King to continue to be his doctor, and because her husband implied that Dr. King would only be his doctor if he, you know, like he knew that [Mr. Watson] wasn t abusing his drugs, the day before her husband s next monthly appointment with Dr. King, Mrs. Watson visited Dr. King s office to speak with Dr. King in person. During this meeting, Mrs. Watson says she told Dr. King that, when she contacted his office in December, she had not reported that her husband was abusing his medication, but said only that there was something wrong, and [she] didn t know if it was the medicines, one of the medicines, all the medicines. According to Dr. King s notes regarding this meeting with Mrs. Watson notes that are only partially legible because they were later scribbled through Dr. King noted: Wife changed her mind... her prev. message for me on She now thinks her

5 -5- husband is not abusing meds. OK to not refer pt to pain clinic. When Mr. Watson returned home the next day from his 10 January 2007 appointment with Dr. King, he brought with him a different prescription for methadone, one which increased his daily dosage of methadone from 40 milligrams to 50 milligrams. Thus, while each of Mr. Watson s prior prescriptions for methadone were written for 124 ten-milligram tablets, 2 to accommodate the increased prescription dosage of an additional 10 milligrams per day, the prescription Mr. Watson received from Dr. King on 10 January was written for 155 ten-milligram tablets. On 17 January 2007, Mr. Watson woke up at 4:00 a.m., as he did each morning, took his medication, and went to work. At 10:00 a.m., Mr. Watson s boss telephoned Mrs. Watson to let her know that he was going to take Mr. Watson home because Mr. Watson seemed groggy and because his boss was afraid that Mr. Watson would get hurt if he remained at work. When Mrs. Watson 2 Although plaintiff s brief indicates that, from 21 August 2006 through 13 December 2006, Dr. King prescribed 120 ten-milligram tablets of methadone each month for Mr. Watson, the medical records before us indicate that Dr. King prescribed 124 tenmilligram tablets of methadone each month. We further observe that the pharmacy that filled Mr. Watson s August through October prescriptions for methadone dispensed 120 ten-milligram tablets, while the pharmacy that filled Mr. Watson s November and December prescriptions dispensed 124 ten-milligram tablets.

6 -6- returned home around 5:30 p.m., she found that her husband had passed away on the back deck. Mr. Watson s cause of death was methadone toxicity. The Chief Medical Examiner s Office found that only 28 methadone tablets remained from the prescription filled one week earlier for 155 methadone tablets. In other words, after filling his most recent monthly methadone prescription just one week earlier, upon Mr. Watson s death, less than six days worth of methadone remained. When Mrs. Watson looked through Mr. Watson s tool bag at work one week after his death to see if she could locate any of the missing methadone pills, she found none. Plaintiff filed a wrongful death action against defendants alleging that defendants negligence caused her husband s death. After voluntarily dismissing her claims without prejudice, plaintiff again filed a complaint against defendants alleging the same cause of action. Defendants answered and asserted several affirmative defenses, including that plaintiff s claims were barred by the doctrine of contributory negligence. Defendants then moved for summary judgment. After considering the pleadings and the materials submitted by the parties, the trial court determined that defendants were entitled to judgment as a matter of law on the issue of contributory negligence, and dismissed plaintiff s claims with prejudice. Plaintiff appeals.

7 -7- Plaintiff contends the trial court erred by allowing defendants motion for summary judgment because she asserts there are genuine issues of material fact as to whether Mr. Watson s conduct contributed to his death. We disagree. A motion for summary judgment may be granted only when there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Ballenger v. Crowell, 38 N.C. App. 50, 53, 247 S.E.2d 287, 290 (1978); see also N.C. Gen. Stat. 1A-1, Rule 56(c) (2011). All evidence before the court must be construed in the light most favorable to the non-moving party. The slightest doubt as to the facts entitles the non-moving party to a trial. Ballenger, 38 N.C. App. at 53, 247 S.E.2d at 290. [O]rdinarily, summary judgment is not proper in actions involving contributory negligence, since the standard used in contributory negligence cases, that of reasonable care, usually requires a jury determination. Sawyer v. Food Lion, Inc., 144 N.C. App. 398, 401, 549 S.E.2d 867, (2001) (citation omitted). Nevertheless, [i]n an action for wrongful death predicated on negligence, summary judgment for defendant is correct where the evidence... establishes contributory negligence on the part of the decedent.... Brown v. Duke

8 -8- Power Co., 45 N.C. App. 384, 386, 263 S.E.2d 366, 368 (alteration in original) (internal quotation marks omitted), disc. review denied, 300 N.C. 194, 269 S.E.2d 615 (1980). In other words, where the uncontroverted evidence shows that a plaintiff has failed to use due care and that such contributory negligence was at least one of the proximate causes of plaintiff s injuries, a defendant is entitled to summary judgment. Meadows v. Lawrence, 75 N.C. App. 86, 88 89, 330 S.E.2d 47, 49 (1985), aff d per curiam, 315 N.C. 383, 337 S.E.2d 851 (1986). In the present case, according to her own testimony, about five weeks before Mr. Watson s death, plaintiff called Dr. King s office to report that she had some concerns regarding her husband s medication, which was memorialized in Dr. King s notes as an expression of concern that Mr. Watson was abusing his medication. Two days later, when Mr. Watson returned home from his 13 December 2006 appointment with Dr. King, Mr. Watson was upset because Dr. King told him that an anonymous caller had contacted the office to report that he was abusing his medicine, a claim which Mr. Watson denied. Although the parties do not dispute that Mr. Watson signed a Pain Management Agreement when he began his treatment with Dr. King, in which he agreed that he would use [his pain-control] medicine at a rate

9 -9- no greater than the prescribed rate, Mrs. Watson said she questioned her husband about discrepancies she found between the number of pills that should have been present in his methadone prescription bottle and the number of pills that were actually present in his prescription bottle. Mr. Watson declared that the reason for the discrepancy was that he had brought some of the methadone pills to work and stored them in his tool bag in order to have medication available to him as needed while he was at work. Nevertheless, during the course of its investigation, the Chief Medical Examiner s Office found only 28 methadone tablets remaining from the prescription for 155 methadone tablets that Mr. Watson brought home one week prior to his death, and Mrs. Watson did not find any of the missing methadone pills in the tool bag in which her husband claimed he was keeping the rest of his methadone prescription. Additionally, plaintiff designated as her experts Dr. Maryanne Gaffney Kraft and Dr. Robert Hodges Bilbro. Dr. Gaffney Kraft is a forensic pathologist who served as Associate Chief Medical Examiner for the North Carolina Office of the Chief Medical Examiner at the time of Mr. Watson s death and performed his autopsy. Dr. Gaffney Kraft was designated by plaintiff as an expert witness who would testify that methadone toxicity was the cause of Mr. Watson s death based on the

10 -10- totality of the autopsy examination and that toxicological analysis of Mr. Watson s postmortem blood and liver shows lethal levels of methadone. Dr. Bilbro, a physician who is boardcertified in internal medicine, was designated by plaintiff as an expert witness who would testify how Dr. King breached the standard of care for the treatment of [Mr. Watson]. Based on the uncontroverted evidence that only 28 out of the 155 methadone pills remained in Mr. Watson s week-old prescription bottle at the time of his death, Dr. Gaffney Kraft testified that such a finding tells [her] that [Mr. Watson] was not using the medication as prescribed and [was] using more medication than he was supposed to. (Emphasis added.) Dr. Gaffney Kraft also agreed that Mr. Watson s failure to take his methadone as prescribed contributed to his death. When Dr. Bilbro was asked his opinion as to whether Mr. Watson contributed to his death by exceeding the prescribed dosage of methadone, Dr. Bilbro answered, Yeah. That does contribute to the outcome [of his death]. Moreover, based on the toxicology report, Dr. Gaffney Kraft testified that, comparing the [methadone] levels that [Mr. Watson] had in his blood to the level [she] would expect that he would have with the dose he was given, the level is too high. She also testified, [I]n my opinion, the level is not

11 -11- consistent with the dose he was taking, it s higher than it should have been, and it does fall into both the toxic and lethal level.... Dr. Gaffney Kraft further testified that, due to the absence of pill fragments in his stomach at the time of the autopsy, the toxic and lethal levels of methadone in Mr. Watson s system did not result from a one-time ingestion of a handful of pills, suggesting that [Mr. Watson] may have been using too many pills over a period of time. Thus, based on our review of the evidence before us, we conclude that there are no genuine issues of material fact as to whether Mr. Watson ingested the prescribed methadone pills at a rate greater than that of Dr. King s prescribed dosing schedule, and that, as a result of this conduct, Mr. Watson contributed to his own death. Furthermore, we find no merit in plaintiff s unsupported assertion that the trial court should have allowed a jury to determine whether Mr. Watson exercised reasonable care when, as the uncontested evidence shows, he ingested methadone in amounts exceeding Dr. King s prescribed dosage in contravention of the express terms of his Pain Management Agreement with defendants so as to cause the levels of methadone in his body to become toxic and lethal. Accordingly, we hold the trial court did not err when it granted defendants motion for summary judgment and dismissed

12 -12- plaintiff s complaint with prejudice. Affirmed. Judges STEELMAN and ERVIN concur. Report per Rule 30(e).

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 5 September 2006

NO. COA NORTH CAROLINA COURT OF APPEALS. Filed: 5 September 2006 An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3)