William Wayne Reynolds v. Allen Cole Burks, M.D., et al.

Burgaw, North Carolina personal injury medical malpractice lawyers represented the Plaintiff.

On 12 January 2023, William Wayne Reynolds (Plaintiff)-a resident of Pender County-filed a Complaint in Pender County Superior Court against Defendants. The Complaint alleged medical negligence on the part of Defendants for treatment Plaintiff received while admitted at the University of North Carolina Medical Center in Chapel Hill, North Carolina.



With respect to Dr. Ghosh, Plaintiff's Complaint alleged upon information and belief, at all times relevant to Plaintiff's action, Dr. Ghosh:



A. was a third-year pulmonology fellow at UNC Hospitals;



B. was a fellow in interventional pulmonology at the School of Medicine of the University of North Carolina;



C. was acting as an employee, agent and/or apparent agent of the School of Medicine of the University of North Carolina; and



D. was acting as an employee, agent and/or apparent agent of UNC Hospitals.



Similarly, with respect to Dr. Burks, Plaintiff alleged upon information and belief, at all times relevant to Plaintiff's action, Dr. Burks:



A. was an attending physician at UNC Hospitals;



B. was acting as an employee, agent and/or apparent agent of the School of Medicine of the University of North Carolina; and



C. was acting as an employee, agent and/or apparent agent of UNC Hospitals.



On 5 April 2023, Defendants each filed an Answer to the Complaint. In their Answers, with respect to Dr. Ghosh, each Defendant:



A. denied she was a third-year pulmonology fellow at UNC Hospitals;



B. denied she was a fellow in interventional pulmonology at the School of Medicine of the University of North Carolina;



C. objected and moved to strike the allegation Dr. Ghosh was acting as an employee, agent and/or apparent agent of the School of Medicine of the University of North Carolina or in the alternative alleged lack of knowledge or information sufficient to form a belief as to the truth of the allegation; and



D. objected and moved to strike the allegation Dr. Ghosh was acting as an employee, agent and/or apparent agent of UNC Hospitals or in the alternative alleged lack of knowledge or information sufficient to form a belief as to the truth of the allegation.



With respect to Dr. Burks, each Defendant:



A. denied he was an attending physician at UNC Hospitals;



B. objected and moved to strike the allegation Dr. Burks was acting as an employee, agent and/or apparent agent of the School of Medicine of the University of North Carolina or in the alternative alleged lack of knowledge or information sufficient to form a belief as to the truth of the allegations; and



C. objected and moved to strike the allegation Dr. Burks was acting as an employee, agent and/or apparent agent of UNC Hospitals or in the alternative alleged lack of knowledge or information sufficient to form a belief as to the truth of the allegation.



In their Answers, both Defendants also moved to change venue to Orange County Superior Court under N.C. Gen. Stat. § 1-77 on the basis that this was the county the care occurred and where UNC Hospital-a state-created hospital-and the School of Medicine are located. Alternatively, both Defendants moved for a change of venue under N.C. Gen. Stat. § 1-83 based on convenience of the witnesses.



Defendants' Motions to Change Venue were heard by the trial court on 5 September 2023. At the hearing, Plaintiff and Defendants each presented arguments of counsel. Defendants contended they were entitled to a change of venue under Section 1-77, which provides a case "must be tried in the county where the cause, or some part thereof, arose, subject to the power of the court to change the place of trial" where the action is "[a]gainst a public officer or person especially appointed to execute his duties, for an act done by him by virtue of his office[.]" N.C. Gen. Stat. § 1-77 (2023). Defendants contended they were employees of UNC Hospitals-and thus covered by the statute-and the action arose from the medical care they provided in Orange County. Defendants, however, presented no evidence or affidavits to support their position, instead relying on trial court orders entered in other cases.



Later in the day on 5 September 2023, the trial court issued its rendered ruling via email. The trial court informed the parties it was "denying the Motion[s] to Change Venue." The trial court expressly indicated "I am not making a finding that the Doctors are not covered under NCGS 1-77, but I am denying the Motion[s] on both grounds."



On 13 September 2023, the trial court entered its Order Denying Defendants' Motions to Change Venue. The Order determined: "The Court makes no finding that Dr. Burks or Dr. Ghosh are not covered under N.C. Gen. Stat. [§] 1-77, but based upon what was presented to the Court, the motions to change venue pursuant to N.C. Gen.

Stat. §§ 1-77 and 1-83 are both denied." The trial court ordered the matter to proceed in Pender County.

Reynolds v. Burks, COA24-75 (N.C. App. Sep 03, 2024)

Affirmed