NO. COA13-1050

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2014

MICHELE LaFRAGE PETER and CARL 

PETER,

Plaintiffs,

v. Mecklenburg County

No. 11 CVS 18251

JOHN VULLO, M.D., SOUTHEAST 

ANESTHESIOLOGY CONSULTANTS, PLLC 

f/k/a SOUTHEAST ANESTHESIOLOGY 

CONSULTANTS, P.A., AMERICAN 

ANESTHESIOLOGY OF THE SOUTHEAST, 

PLLC, THE CHARLOTTE-MECKLENBURG 

HOSPITAL AUTHORITY d/b/a CAROLINAS 

HEALTHCARE SYSTEM d/b/a CAROLINAS 

MEDICAL CENTER, and MERCY 

HOSPITAL, INC.,

Defendants.

Appeal by plaintiffs from order entered 12 April 2013 by 

Judge Richard D. Boner in Mecklenburg County Superior Court. 

Heard in the Court of Appeals 5 February 2014.

Van Laningham Duncan PLLC, by Stephen M. Russell, Jr., for 

plaintiff-appellants.

Parker Poe Adams & Bernstein, LLP, by John H. Beyer, Jami 

J. Farris, and John D. Branson, for defendants John F. 

Vullo, M.D., Southeast Anesthesiology Consultants, PLLC, 

f/k/a Southeast Anesthesiology Consultants, P.A., and 

American Anesthesiology of the Southeast, PLLC.

Lincoln Derr PLLC, by Tricia M. Derr, for defendants The 

Charlotte-Mecklenburg Hospital Authority d/b/a/ Carolinas 

Healthcare System d/b/a Carolinas Medical Center and Mercy 

Hospital, Inc.
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McCULLOUGH, Judge.

Plaintiffs Michele LaFrage Peter and Carl Peter appeal from 

an order granting summary judgment in favor of defendants John 

Vullo, M.D., Southeast Anesthesiology Consultants, PLLC f/k/a 

Southeast Anesthesiology Consultants, P.A., American 

Anesthesiology of the Southeast, PLLC, The Charlotte-Mecklenburg 

Hospital Authority d/b/a Carolinas Healthcare System d/b/a 

Carolinas Medical Center, and Mercy Hospital, Inc. Based on the 

reasons stated herein, we reverse in part and affirm in part.

I. Background

Plaintiffs Michele LaFrage Peter (“Ms. Peter”) and Carl 

Peter (“Dr. Peter”) are married. On 13 July 2012, plaintiffs 

filed an amended complaint against defendants John F. Vullo, 

M.D., Southeast Anesthesiology Consultants, PLLC f/k/a Southeast 

Anesthesiology Consultants, P.A., American Anesthesiology of the 

Southeast, PLLC, (collectively “the doctor defendants”), The 

Charlotte-Mecklenburg Hospital Authority d/b/a Carolinas 

Healthcare System d/b/a Carolinas Medical Center (“CMC”), and 

Mercy Hospital, Inc. (“CMC Mercy”) (collectively “the hospital 

defendants”). Plaintiffs’ claims included professional 
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negligence, loss of consortium by Dr. Peter, and respondeat 

superior liability.

Plaintiffs’ complaint alleged the following: In February 

2010, Ms. Peter suffered a severe sprain of her right ankle. In 

June 2010, after several months of physical therapy and two 

MRIs, Ms. Peter was referred to Dr. Robert Anderson, a foot and 

ankle specialist with OrthoCarolina in Charlotte, North 

Carolina. Dr. Anderson recommended surgical intervention and 

scheduled for it to take place on 22 December 2010 at CMC/CMC 

Mercy. On 22 December 2010, Ms. Peter underwent surgery at 

CMC/CMC Mercy. Plaintiffs alleged that defendants induced 

regional anesthesia in preparation for Ms. Peter’s right ankle 

arthroscopic surgery. “Ms. Peter was given fentanyl and versed 

for sedation and remained in ‘conscious sedation’ throughout the 

procedure.” Dr. Vullo, an employee of Southeast Anesthesiology 

Consultants, PLLC, f/k/a Southeast Anesthesiology Consultants, 

P.A. and/or American Anesthesiology of the Southeast, PLLC, was 

to administer a popliteal nerve block and a saphenous nerve 

block into an area behind Ms. Peter’s right knee.

Plaintiffs alleged that at some point during the procedure, 

an unknown female attendant entered the room to assist Dr. Vullo 

as he was “having problems locating a nerve” to administer the 
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appropriate blocks. Plaintiffs assert that defendants failed to 

properly administer the nerve blocks and improperly administered 

repeated needle insertions, resulting in nerve damage. Ms. 

Peter stated that immediately following the injections, she 

experienced extreme pain and numbness in her right leg from 

which she still suffers. The pain and numbness has resulted in 

her inability to work and conduct day-to-day activities.

The hospital defendants and the doctor defendants filed

motions for summary judgment on 25 February 2013 pursuant to 

Rule 56 of the North Carolina Rules of Civil Procedure. The 

doctor defendants argued that plaintiffs’ complaint was a 

medical malpractice action as defined by N.C. Gen. Stat. § 90-

21.11. The doctor defendants contended that on 10 October 2012, 

a “Revised Consent Discovery Scheduling Order” was entered. 

This order set forth a schedule for the designation of expert 

witnesses and the completion of discovery prior to trial. 

Pursuant to this order, plaintiffs identified two retained 

medical expert witnesses that were to testify at trial: Dr. 

Steven Fiamengo, anesthesiologist of Newberry, South Carolina, 

and Dr. Robert Friedman, neurologist of Palm Beach, Florida. 

Both doctors were deposed and the doctor defendants argued that 

plaintiffs “failed to designate a qualified expert witness to 
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offer an opinion that Dr. Vullo deviated from the applicable 

standard of care.” Furthermore, the doctor defendants argued 

that plaintiffs could not establish a prima facie case of 

medical malpractice.

On 5 April 2013, plaintiffs filed an affidavit of Dr. 

Fiamengo in response to defendants’ motions for summary 

judgment. On 8 April 2013, doctor defendants filed a motion to 

strike Dr. Fiamengo’s affidavit.

Following a hearing held at the 9 April 2013 term of 

Mecklenburg County Superior Court, the trial court entered an 

order granting defendants’ motions for summary judgment and 

dismissing plaintiffs’ claims with prejudice on 12 April 2013. 

The trial court also held the following:

The Court declines to strike Dr. Fiamengo’s 

Affidavit in its entirety, but is aware of 

and has applied the law as set forth in 

Wachovia Mortgage Co. v. Autry-BarkerSpurrier Real Estate, Inc., 39 N.C. App. 1, 

249 SE2d 727 (1978) (holding that a party 

opposing a motion for summary judgment 

cannot create an issue of fact by filing an 

affidavit contradicting the prior sworn 

testimony of a witness).

From this 12 April 2013 summary judgment order, plaintiffs 

appeal.

II. Standard of Review
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“Our standard of review of an appeal from summary judgment 

is de novo; such judgment is appropriate only when the record 

shows that there is no genuine issue as to any material fact and 

that any party is entitled to a judgment as a matter of law.”

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 

(2008) (citation and quotation marks omitted).

The moving party bears the burden of 

establishing the lack of a triable issue of 

fact. If the movant meets its burden, the 

nonmovant is then required to produce a 

forecast of evidence demonstrating that the 

[nonmoving party] will be able to make out 

at least a prima facie case at trial.

Furthermore, the evidence presented by the 

parties must be viewed in the light most 

favorable to the non-movant.

Thompson v. First Citizens Bank & Trust Co., 151 N.C. App. 704, 

706, 567 S.E.2d 184, 187 (2002) (internal citations and 

quotation marks omitted).

III. Discussion

On appeal, plaintiffs argue that the trial court erred (A) 

by granting summary judgment in favor of the doctor defendants; 

(B) in its consideration of Dr. Fiamengo’s affidavit; (C) by 

granting summary judgment in favor of the hospital defendants; 

and (D) by granting summary judgment as to the loss of 

consortium claim. Because issues (A) and (B) are closely 

related, we will address them together.
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A. Summary Judgment in favor of the Doctor Defendants

and

B. Affidavit of Dr. Fiamengo

Plaintiffs argue that that trial court erred by granting 

summary judgment in favor of the doctor defendants where 

plaintiffs forecast sufficient evidence to satisfy the 

requirements of a medical malpractice claim pursuant to section

90-21.12(a) of the North Carolina General Statutes. Plaintiffs 

also argue that the trial court erred in its consideration of 

Dr. Fiamengo’s affidavit. We agree.

N.C. Gen. Stat. § 90-21.12(a) provides as follows:

in any medical malpractice action as defined 

in G.S. 90-21.11(2)(a), the defendant health 

care provider shall not be liable for the 

payment of damages unless the trier of fact 

finds by the greater weight of the evidence 

that the care of such health care provider 

was not in accordance with the standards of 

practice among members of the same health 

care profession with similar training and 

experience situated in the same or similar 

communities under the same or similar 

circumstances at the time of the alleged act 

giving rise to the cause of action[.]

N.C. Gen. Stat. § 90-21.12(a) (2013) (emphasis added). “In 

order to maintain an action for medical malpractice, a plaintiff 

must offer evidence to establish (1) the applicable standard of 

care; (2) breach of that standard; (3) proximate causation; and 
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(4) damages.” Robinson v. Duke Univ. Health Systems, __ N.C. 

App. __, __, 747 S.E.2d 321, 334 (2013) (citation omitted).

It is well established that 

[b]ecause questions regarding the standard 

of care for health care professionals 

ordinarily require highly specialized 

knowledge, the plaintiff must establish the 

relevant standard of care through expert 

testimony. Further, the standard of care 

must be established by other practitioners 

in the particular field of practice of the 

defendant health care provider or by other 

expert witnesses equally familiar and 

competent to testify as to that limited 

field of practice.

Although it is not necessary for the witness 

testifying as to the standard of care to 

have actually practiced in the same 

community as the defendant, the witness must 

demonstrate that he is familiar with the 

standard of care in the community where the 

injury occurred, or the standard of care of 

similar communities.

Smith v. Whitmer, 159 N.C. App. 192, 195-96, 582 S.E.2d 669, 

671-72 (2003) (internal citations and quotation marks omitted).

In the case sub judice, plaintiffs presented Dr. Fiamengo 

as their expert witness to testify that the medical care 

received by Ms. Peter did not comply with the applicable 

standard of care. Dr. Fiamengo is an anesthesiologist 

practicing at Crescent Anesthesia Associates, LLC, in South 

Carolina. Dr. Fiamengo was deposed first on 15 November 2012 
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and then subsequently provided an affidavit on 5 April 2013. 

The doctor defendants filed a motion to strike the affidavit, 

arguing that plaintiffs “served the contradictory affidavit of 

Dr. Fiamengo in an attempt to create an issue of fact and defeat 

these Defendants’ Motion for Summary Judgment,” prohibited by 

North Carolina law.

Our review establishes that during Dr. Fiamengo’s 15 

November 2012 deposition testimony, Dr. Fiamengo testified that 

although he believed Dr. Vullo’s actions amounted to a deviation 

from the standard of care, he failed to demonstrate that he was 

familiar with the standard of care in the community where the 

injury occurred. Rather, Dr. Fiamengo appeared to be applying a 

national standard of care rather than the “same or similar 

community” standard required pursuant to N.C. Gen. Stat. § 90-

21.12:

[Counsel for the doctor defendants]: Have 

you arrived at some opinions in this case 

concerning the standard of care that applied 

to Dr. Vullo when he performed this 

peripheral nerve block for Mrs. Peter?

[Dr. Fiamengo]: My opinion is that the 

nerve injury occurred during the performance 

of the block, that it should have been 

recognized with a sonogram, and that 

injection occurred nevertheless and it 

resulted in an injury. And because of the 

lack of recognition that the injury occurred 

–- that the injection occurred 
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intraneurally, that that was a deviation 

from the standard of care.

. . . .

[Counsel for the doctor defendants]: Now 

with respect to that standard of care 

opinion, are you taking into consideration 

in forming that opinion anything about the 

medical community in Charlotte as it existed 

in December 2010?

[Dr. Fiamengo]: No

. . . .

[Counsel for the doctor defendants]: So am 

I right, Dr. Fiamengo, that the standard of 

care that you’re applying to assess Dr. 

Vullo’s care in this case would be a 

national standard of care?

[Dr. Fiamengo]: Yes.

Dr. Fiamengo’s 5 April 2013 affidavit, on the other hand, 

provided as follows:

8. I have reviewed information about the 

community of Charlotte, North Carolina, 

Mecklenburg County, and CMC Mercy 

Hospital for the period December 2010. I 

am familiar with the size of the 

population and economic condition of 

Charlotte, North Carolina. I am familiar 

with the level of care and resources 

available at the hospital, the

facilities, and the number of health care 

providers for anesthesiology.

9. I have worked in communities similar to 

Charlotte and performed anesthesiology 

services in a hospital similar in size 

and resources to CMC Mercy.
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10. The standard for performance of popliteal 

nerve blocks would not differ between my 

practice and an anesthesiologist in 

Charlotte, NC, given the similarities 

between my practice compared to the 

resources available to CMC Mercy and the 

experience of Dr. Vullo.

11. I am familiar with the prevailing 

standard of care for performing popliteal 

nerve blocks in the same or similar 

community to Charlotte, North Carolina in 

December 2010 by a physician with the 

same or similar training, education, and 

experience as Dr. Vullo.

12. Based on my review of this case, it is my 

opinion within a reasonable degree of 

medical certainty that the care of Dr. 

Vullo provided to Michele Peter was not 

in accordance with the standards of 

practice among members of the same health 

care profession with similar training and 

experience situated in the same or 

similar communities under the same or 

similar circumstances at the time of the 

. . . performance of Ms. Peter’s nerve 

block in December 2010.

13. The applicable standard in Charlotte in 

2010 for an anesthesiologist such as Dr. 

Vullo required, among other things, that 

Dr. Vullo recognize and avoid intraneural 

injections while performing popliteal 

nerve blocks. Dr. Vullo failed to do so 

in this case, which directly caused Ms. 

Peter’s injuries.

The trial court stated in its summary judgment order that 

it declined to strike Dr. Fiamengo’s affidavit in its entirety, 

but noted that it had “applied the law as set forth in Wachovia 
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Mortgage Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. 

App. 1, 249 SE2d 727 (1978) (holding that a party opposing a 

motion for summary judgment cannot create an issue of fact by 

filing an affidavit contradicting the prior sworn testimony of a 

witness).”

Plaintiffs argue, and we agree, that the trial court 

erroneously characterized Dr. Fiamengo’s affidavit testimony as 

a tactic to contradict his own prior deposition testimony, in an 

attempt to create an issue of fact to defeat defendants’ summary 

judgment motions. Rather, we believe that the circumstances are 

very similar to the facts found in Roush v. Kennon, 188 N.C. 

App. 570, 656 S.E.2d 603 (2008). In Roush, the trial court 

granted the defendants’ motion to strike the plaintiff’s 

proffered expert witness, Dr. Tuzman. The defendants argued, 

among other things, that Dr. Tuzman was not qualified to offer 

standard of care opinions because he had no familiarity with 

Charlotte, North Carolina as required pursuant to Rule 9(j)1. 

 

1Rule 9(j) of the North Carolina Rules of Civil Procedure 

provides for the requirements when pleading medical malpractice:

Any complaint alleging medical malpractice 

by a health care provider pursuant to G.S. 

90-21.11(2)a. in failing to comply with the 

applicable standard of care under G.S. 90-

21.12 shall be dismissed unless: (1) The 

pleading specifically asserts that the 

medical care and all medical records 
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Specifically, defendants argued that a deposition prior to trial 

established that Dr. Tuzman was not qualified because he had 

never been to Charlotte, the location where the alleged injury 

occurred, knew nothing about the dental community in Charlotte, 

and believed in the existence of a national standard of care for 

all dentists. Id. at 574, 656 S.E.2d at 607. Our Court held 

that

the record on appeal indicates that 

subsequent to his deposition, Dr. Tuzman 

sought to supplement his understanding of 

the applicable standard of care in the 

Charlotte metropolitan area by reviewing, 

inter alia, the demographic data for the 

Charlotte metropolitan area, the Dental 

Rules of the North Carolina State Board of 

Dental Examiners, and the deposition of [the 

defendant] Dr. Kennon regarding the 

procedures, techniques, and implements which 

he used while performing a molar extraction 

on plaintiff. After reviewing these 

sources, Dr. Tuzman was able to conclude 

that the standard of care for Atlanta, 

Georgia (in which he practiced), was the 

same standard of care that applied to the 

similar community of Charlotte, North 

Carolina. . . . Thus, we find that Dr. 

Tuzman possessed sufficient familiarity with 

 

pertaining to the alleged negligence that 

are available to the plaintiff after 

reasonable inquiry have been reviewed by a 

person who is reasonably expected to qualify 

as an expert witness under Rule 702 of the 

Rules of Evidence and who is willing to 

testify that the medical care did not comply 

with the applicable standard of care.

N.C. Gen. Stat. § 1A-1, Rule 9(j)(1) (2013).
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Charlotte and the practice of dentistry 

therein to testify as to the appropriate 

standard of care as required by N.C. Gen. 

Stat. § 90-21.12.

Id. at 576-77, 656 S.E.2d at 607-608.

The record before us indicates that subsequent to giving 

his deposition, Dr. Fiamengo reviewed information about the 

community of Charlotte and CMC Mercy for the period of December 

2010, became familiar with the population size and economic 

condition of Charlotte, and became familiar with the level of 

care and resources available at the hospital, the facilities, 

and the number of health care providers for anesthesiology.

Furthermore, Dr. Fiamengo testified that he had worked in 

communities similar to Charlotte and performed anesthesiology 

services in a hospital similar in size and resources to CMC 

Mercy. He testified that he was “familiar with the prevailing 

standard of care for performing popliteal nerve blocks in the 

same or similar community to Charlotte, North Carolina in 

December 2010 by a physician with the same or similar training, 

education, and experience as Dr. Vullo.” Thus, we hold that the 

trial court erred by applying the holding in Wachovia Mortgage

Co. to Dr. Fiamengo’s affidavit.

Dr. Fiamengo testified that “[t]he applicable standard in 

Charlotte in 2010 for an anesthesiologist such as Dr. Vullo 
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required, among other things, that Dr. Vullo recognize and avoid 

intraneural injections while performing popliteal nerve blocks. 

Dr. Vullo failed to do so in this case, which directly caused 

Ms. Peter’s injuries.” Reviewing the evidence in the light most 

favorable to plaintiffs, plaintiffs offered sufficient evidence 

of (1) the applicable standard of care, (2) breach of that 

standard of care, (3) proximate causation, and (4) damages, 

successful to defeat defendants’ summary judgment motion.

When plaintiffs have introduced evidence 

from an expert stating that the defendant 

doctor did not meet the accepted medical 

standard, [t]he evidence forecast by the 

plaintiffs establishes a genuine issue of 

material fact as to whether the defendant 

doctor breached the applicable standard of 

care and thereby proximately caused the 

plaintiff’s injuries. This issue is 

ordinarily a question for the jury, and in 

such case, it is error for the trial court 

to enter summary judgment for the defendant.

Robinson, __ N.C. App. at __, 747 S.E.2d at 335 (citation 

omitted).

Based on the foregoing reasons, we reverse the order of the 

trial court granting summary judgment in favor of the doctor 

defendants and remand to the trial court for further proceedings 

consistent with this opinion.

C. Summary Judgment in Favor of the Hospital Defendants
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Next, plaintiffs argue that there was sufficient evidence 

to support their claim that the hospital defendants were liable 

under the doctrine of respondeat superior. Plaintiffs argue 

that “an inference can be drawn that an agency relationship 

existed between Dr. Vullo and the Hospital Defendants” since CMC 

and CMC Mercy held themselves out as providing medical services 

to Ms. Peter under the doctrine of apparent agency. We 

disagree.

Under the doctrine of respondeat superior, a 

hospital is liable for the negligence of a 

physician or surgeon acting as its agent.

There will generally be no vicarious 

liability on an employer for the negligent 

acts of an independent contractor. Unless 

there is but one inference that can be drawn 

from the facts, whether an agency 

relationship exists is a question of fact 

for the jury. If only one inference can be 

drawn from the facts then it is a question 

of law for the trial court.

Hylton v. Koontz, 138 N.C. App. 629, 635, 532 S.E.2d 252, 257 

(2000) (citations omitted).

“[A]pparent agency would be applicable to hold the hospital 

liable for the acts of an independent contractor if the hospital 

held itself out as providing services and care.” Diggs v. 

Novant Health, Inc., 177 N.C. App. 290, 305, 628 S.E.2d 851, 861 

(2006) (citation omitted).

Under this approach, a plaintiff must prove 
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that (1) the hospital has held itself out as 

providing medical services, (2) the 

plaintiff looked to the hospital rather than 

the individual medical provider to perform 

those services, and (3) the patient accepted 

those services in the reasonable belief that 

the services were being rendered by the 

hospital or by its employees. A hospital 

may avoid liability by providing meaningful 

notice to a patient that care is being 

provided by an independent contractor.

Id. at 307, 628 S.E.2d at 862 (citation omitted).

Plaintiffs compare the facts of the present case to those 

found in Diggs v. Novant Health, Inc., 177 N.C. App. 290, 628 

S.E.2d 851 (2006), and argue that a jury could decide that Ms. 

Peter accepted medical services in the reasonable belief that 

the services were being provided by the hospital defendants. 

After thoughtful review, we find the facts of the present case 

distinguishable.

In Diggs, the plaintiff filed a medical malpractice action 

arising out of a gall bladder surgery performed at Forsyth 

Medical Center (“FMC”). The plaintiff alleged that Forsyth 

Memorial Hospital, Inc., Novant Health, Inc., and Novant Health 

Triad Region, L.L.C. were vicariously liable for the negligence 

of the hospital nursing staff and the team assigned to 

administer anesthesia to the plaintiff. Id. at 292, 628 S.E.2d 

at 853. The trial court granted summary judgment in favor of 
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the Forsyth Memorial Hospital, Inc., Novant Health, Inc., and 

Novant Health Triad Region, L.L.C. Id. Our Court affirmed 

summary judgment for Novant Health Inc. and Novant Health Triad 

Region, L.L.C., but reversed summary judgment as to Forsyth 

Memorial Hospital, Inc. (“the hospital”). Id.

The Diggs plaintiff chose to have Dr. Ismael Goco, who had 

hospital privileges at FMC, perform her surgery. On 12 October 

1999, the plaintiff was admitted to FMC, which is operated by 

the hospital. The plaintiff’s surgery required general 

anesthesia. Piedmont Anesthesia & Pain Consultants, P.A. 

(“Piedmont”) had a contract with the hospital that granted 

Piedmont the exclusive right to provide anesthesia services at 

FMC. Id. at 293, 628 S.E.2d at 854. Piedmont employees, Dr. 

McConville and nurse Sheila Crumb, “were responsible for 

administering anesthesia to [the] plaintiff through an induction 

and intubation process. Ms. Crumb performed the intubation, 

which involved inserting a tube into [the] plaintiff’s trachea, 

under the supervision of Dr. McConville.” Id. During the 

plaintiff’s procedure, her esophagus was perforated, resulting 

in injuries. Id. The Diggs plaintiff argued that she was not 

aware that Dr. McConville and Ms. Crumb were not employees of 

the hospital and argued that the hospital was vicariously liable 
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for the negligence of Dr. McConville, Ms. Crumb, and Piedmont.

Id. at 293-94, 628 S.E.2d at 854. Our Court held that the 

plaintiff failed to present sufficient evidence to establish a 

prima facie case of actual agency and then turned to the issue 

of liability based on apparent agency. Id. at 301, 628 S.E.2d 

at 858.

Our Court found that the plaintiff had presented sufficient 

evidence to meet the test of apparent agency based on the 

following evidence: (1) the hospital had a Department of 

Anesthesiology with a Chief of Anesthesiology and a Medical 

Director, “a fact that a jury could reasonably find indicated to 

the public that FMC was providing anesthesia services to its 

patients.” Id. at 307-308, 628 S.E.2d at 862; (2) the hospital

chose to provide anesthesia services by contracting with 

Piedmont exclusively, with Piedmont doctors serving as the 

hospital’s Chief of Anesthesiology and Medical Director; (3) the 

plaintiff and other surgical patients had no choice as to who 

would provide anesthesia services for their operations; and (4) 

the plaintiff signed a “Consent to Operation and/or Other 

Procedures” form that was printed on FMC letterhead which 

distinguished between the plaintiff’s personal physician and 

unnamed anesthesiologists. Id. at 308, 628 S.E.2d at 863. 
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Based on the foregoing, our Court held that “[a] jury could 

decide based on this [consent] form that plaintiff was, through 

this form, requesting anesthesia services from FMC and that –

given the distinction made between plaintiff’s personal 

physician and the unnamed anesthesiologist – plaintiff was 

accepting those services in the reasonable belief that the 

services would be provided by the hospital and its employees.”

Id. at 308-309, 628 S.E.2d at 863.

In the case sub judice, the record indicates that as of 

December 2010, Dr. Vullo was not an employee of the hospital 

defendants. Dr. Vullo was an employee of American 

Anesthesiology of the Southeast, PLLC, which had acquired 

Southeast Anesthesiology Consultants in October 2010. Dr. Vullo 

had hospital staff privileges at CMC Mercy and provided 

anesthesia services to Ms. Peter at CMC Mercy. Nonetheless, our 

Court has established that “evidence that a physician has 

privileges at a hospital is not sufficient, standing alone, to 

make the physician an agent of the hospital[.]” Id. at 301, 628 

S.E.2d at 859.

Distinguishable from the facts found in Diggs, Ms. Peter 

was provided meaningful notice from the hospital defendants that 

the anesthesiologists may be independent contractors. In fact, 
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the hospital defendants expressly disclaimed that independent 

contractors providing certain services at the hospital 

defendants’ facilities were not agents of the hospital 

defendants.

In a 11 July 2012 deposition, Ms. Peter testified that

prior to her surgery on 22 December 2010, she signed a 

“Confirmation of Consent for Procedure or Operation” form (“the 

consent form”) and “Request for Treatment and Authorization 

Form” (“the authorization form”). The consent form included a 

clause, right above the signature line, that stated the 

following:

I UNDERSTAND THAT MY PHYSICIAN, THE 

ANESTHESIOLOGISTS, RADIOLOGISTS, 

PATHOLOGISTS, AND OTHER HEALTH CARE 

PROVIDERS MAY NOT BE EMPLOYED BY OR BE 

AGENTS OF THE HOSPITAL, AND I AGREE THE 

HOSPITAL IS NOT RESPONSIBLE OR LIABLE FOR 

WHAT THEY DO OR FAIL TO DO.

(emphasis added). Furthermore, the authorization form contained 

a provision entitled “Notice of Independent Contractors” which 

provided as follows:

I understand that [The Charlotte-Mecklenburg 

Hospital Authority] has contracted with 

certain independent professional groups for 

such groups to exclusively provide certain 

services at [The Charlotte-Mecklenburg 

Hospital Authority] facilities, including 

but not limited to Charlotte Radiology, 

P.A., Southeast Anesthesiology Consultants, 
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P.A., Carolinas Pathology Group, P.A., 

Southeast Radiation Oncology Group, P.A., 

and Emergency Medicine Physicians, P.A. I 

understand that these professional groups 

are independent contractors, are not

employees or agents of [The CharlotteMecklenburg Hospital Authority], and are not 

subject to control or supervision by [The 

Charlotte-Mecklenburg Hospital Authority] in 

their delivery of professional services.

(emphasis added).

Next, plaintiff argues that the consent and authorization 

forms are insufficient to defeat plaintiffs’ apparent agency 

claim when contrasting it with the release form found in Ray v. 

Forgy, __ N.C. App. __, 744 S.E.2d 468 (2013). We do not find

plaintiffs’ arguments persuasive.

In Ray, the issue before the Court was whether the 

plaintiff patient looked to the hospital rather than the 

individual medical provider, Dr. Forgy, to perform her 

surgeries. Id. at __, 744 S.E.2d at 471. Our Court held that 

there were no issues of material fact regarding apparent agency 

where:

[b]efore [the patient’s procedures, the 

patient] signed request for treatment forms. 

In a section labeled “Designation(s),” she 

checked the box labeled “Physician” and 

wrote in “Dr. Forgy.” Additionally, [the 

patient] separately checked a box labeled 

“Grace Hospital Personnel.” [The patient’s 

husband, who is also a plaintiff,] also 

signed nearly identical consent forms 
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before allowing a catheter to be placed and 

allowing a drain to be put in his wife’s 

abdomen. This suggests that [the patient] 

looked to Dr. Forgy separate and distinct 

from Grace Hospital and its personnel to 

receive medical treatment.

Id. In addition, our Court found that the release form, in 

large print just above the signature line, provided explicit 

notice regarding the employment status of Grace Hospital 

physicians:

that many of the physicians on the staff of 

Grace Hospital are not employees or agents 

of the hospital, but rather, are independent 

contractors who have been granted the 

privilege of using its facilities for the 

care and treatment of patients. . . . My 

signature below indicates that I have read 

and understand the above information.

Id.

Plaintiffs contend that the Ray release document 

specifically identified the physician who allegedly violated the 

standard of care while here, there was “no identification of the 

treating physician on the [h]ospital [d]efendants’ release form, 

or a quantification of the likelihood of Mrs. Peter being 

treated by an unidentified non-employee physician.” However, 

our review reveals that Ms. Peter’s consent form separately

listed Dr. Anderson, the foot and ankle specialist of 

OrthoCarolina, as the physician performing Ms. Peter’s operation 
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on 22 December 2010 from the hospital CMC Mercy. As found in 

Ray, this suggests that Ms. Peter looked to Dr. Anderson, 

separate and distinct from CMC Mercy and its personnel, to 

receive medical treatment. Although the consent and 

authorization forms did not identify Dr. Vullo by name, the 

consent form identified that “anesthesiologists . . . may not be 

employed by or be agents of the hospital.” The authorization 

form also provided that “certain independent professional 

groups” were independent contractors and identified a noncomprehensive list of the independent professional groups that 

included Southeast Anesthesiology Consultants, P.A., a 

predecessor to Dr. Vullo’s employer American Anesthesiology of 

the Southeast, PLLC. Therefore, comparing the facts of Ray and 

the facts in the case before us, we find them to be more 

analogous than dissimilar as plaintiffs argue.

Because it is clear from the record that the hospital 

defendants did not represent or hold out that the providers of 

Ms. Peter’s anesthesia services were agents of the hospital 

defendants, plaintiffs’ apparent agency arguments must fail. 

See Holmes v. Univ Health Serv. Inc., 205 Ga. App. 602, 603, 

423 S.E.2d 281, 283 (1992) (the plaintiff’s arguments that an 

apparent agency relationship existed failed where forms that the 
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plaintiff signed explicitly stated that “[p]hysicians providing 

medical services within this hospital are not employees of 

University Hospital. Each physician is an independent 

contractor”); Cantrell v. Northeast Ga. Med Ctr., 235 Ga. App. 

365, 365, 508 S.E.2d 716, 718 (1998) (no holding out by the 

hospital of the doctor as anything but an independent contractor 

where a sign over the registration desk advised patients that 

the doctors were independent contractors and the consent for 

treatment form also stated that “physicians . . . are not 

hospital employees, but are independent contractors[.]”); 

Compare with Jennison v. Providence St. Vincent Med. Ctr, 174 

Or. App. 219, 234, 25 P.3d 358, 367 (2001) (finding that it was 

reasonable for the patient to assume that the radiologist was a 

hospital employee where nowhere on the consent form did it 

indicate that the radiologists were independent contractors). 

We affirm the order of the trial court granting summary judgment 

in favor of the hospital defendants.

D. Loss of Consortium Claim

Because we hold that summary judgment was erroneously 

entered as to plaintiffs’ claims of negligence against defendant 

doctors, we also hold that Dr. Peter’s loss of consortium claim, 

derivative of Ms. Peter’s negligence claim, should have survived 
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a motion for summary judgment. The trial court erred in 

granting summary judgment in favor of defendants on Dr. Peter’s 

loss of consortium claim.

Reversed in part; affirmed in part.

Judges HUNTER, Robert C. and GEER concur.