                          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.
                                    -2-


    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
                                     -3-
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
                                          -4-
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
                                           -5-
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-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).

       From this 12 April 2013 summary judgment order, plaintiffs

appeal.

                             II.    Standard of Review
                                      -6-
       “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.
                                   -7-


    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
                                            -8-
(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
                                    -9-
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
                                 -10-
         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.
                             -11-


         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
                                 -12-
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.



1
 Rule 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
                              -13-
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).
                                         -14-
              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
                                       -15-
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
                                    -16-
       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
                                      -17-
            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
                                        -18-
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
                                               -19-
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.
                                           -20-
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,
                                          -21-
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,
                                         -22-
               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 Charlotte-
               Mecklenburg 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
                                                -23-
              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
                                              -24-
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     non-

comprehensive 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
                                        -25-
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
                                  -26-
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.
