Mohebali v. Hayes

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-454

Filed 20 August 2025

Buncombe County, No. 21 CVS 002884-100

ALLISON SWEENEY MOHEBALI, Plaintiff,

v.

JOHN DAVID HAYES, M.D., AND HARVEST MOON WOMEN’S HEALTH, PLLC,

Defendants.

Appeal by plaintiff from judgment entered 8 December 2023 by Judge Steven

R. Warren in Buncombe County Superior Court Heard in the Court of Appeals 26

February 2025.

Ballew Puryear PLLC, by Matthew D. Ballew and Zachary R. Kaplan, and

Ward and Smith P.A., by Jeremy Wilson, Alexander C. Dale, Taylor Rodney

Marks, W. Ellis Boyle, and Joseph T. Knott, III, for plaintiff-appellant.

John David Hayes, MD, Pro Se for defendants-appellees.

No brief filed for defendants-appellees.

Nelson Mullins Riley & Scarborough, LLP, by D. Martin Warf, court-assigned

amicus curiae counsel.

Shook, Hardy & Bacon L.L.P., by Caroline M. Gieser, for amici curiae American

Property Casualty Insurance Association, Chamber of Commerce of the United

States of American, and American Tort Reform Association.

Robinson, Bradshaw & Hinson, P.A., by Matthew W. Sawchak, Robert E.

Harrington, Erik R. Zimmerman, and Caroline H. Reinwald, for amici curiae

North Carolina Medical Society, The Charlotte Mecklenburg Hospital

Authority d/b/a Atrium Health, Wake Forest University Baptist Medical

Center d/b/a Atrium Health Wake Forest Baptist, CarolinaEast Health

System, Duke University Health System, Inc., University Health Systems of

Eastern Carolina, Inc. d/b/a ECU Health, North Carolina Chapter of the

MOHEBALI V. HAYES

Opinion of the Court

American Society for Healthcare Risk Management, Inc., NCHA, Inc., d/b/a

North Carolina Healthcare Association, North Carolina Health Care Facilities

Association, Novant Health, Inc., University of North Carolina Health Care

System, and WakeMed.

Parker Poe Adams & Bernstein LLP, by Stephen V. Carey and Aislinn R. Klos,

for amici curiae North Carolina Chamber Legal Institute, North Carolina

Association of Defense Attorneys, North Carolina Farm Bureau Federation,

Inc., North Carolina Home Builders Association, and North Carolina Retail

Merchants Association.

Higgins Benjamin, PLLC, by Robert Neal Hunter, Jr., and Jeanette K. Doran,

for amici curiae North Carolina Institute for Constitutional Law and League

for Civil Engagement, Inc.

DILLON, Chief Judge.

Plaintiff Allison Sweeney Mohebali brought this medical malpractice action

against her obstetrician, John David Hayes, and his medical clinic, Harvest Moon

Women’s Health, PLLC, (collectively, “Defendants”) for ordinary negligence arising

from his care of Plaintiff during her pregnancy. Plaintiff’s pregnancy ended with an

emergency c-section following fetal demise in Plaintiff’s 44th week of gestation, well

past the normal 40-week gestation period.

The issue in this appeal concerns whether a legislative cap imposed by the trial

judge on Plaintiff’s noneconomic damages awarded by the jury violates Plaintiff’s

right to a jury trial under Article I, Section 25 of our North Carolina Constitution.

I. Background

Defendants did not answer Plaintiff’s complaint and otherwise did not provide

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any defense at trial or in this appeal. Plaintiff’s allegations in her complaint were,

therefore, deemed admitted by Defendants. See N.C. R. Civ. P. 8(d) (“Averments in

a pleading to which a responsive pleading is required, other than those as to the

amount of damages, are admitted when not denied in the responsive pleading.”).

Prior to trial, the trial court granted partial summary judgment for Plaintiff,

concluding that Plaintiff was entitled to judgment as a matter of law as to Defendants’

liability for negligence. Accordingly, the only issue presented at trial was damages.

Plaintiff’s allegations in her complaint and her evidence offered at the

summary judgment hearing and at trial tend to show as follows:

Plaintiff became pregnant in late 2018 and desired to give birth in her home.

She put herself in the care of Dr. Hayes, who specialized in home deliveries. Dr.

Hayes assured Plaintiff “he would be able to immediately transfer [her] to a physician

specializing in high-risk pregnancies or to the hospital if medical risks arose[.]”

Plaintiff’s due date was 7 July 2019, based on a gestation period of 40 weeks.

However, when Plaintiff did not naturally go into labor by her due date, Dr. Hayes

told her to be patient. Over the next few weeks, Plaintiff and her husband raised

concerns with Dr. Hayes about the prolonged pregnancy, but Dr. Hayes assured them

there was nothing to worry about.

The risk of harm or death to the baby and harm to the mother rises

precipitously after 42 weeks of gestation. At no time, however, did Dr. Hayes explain

the risks to Plaintiff of carrying a baby well past the due date.

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At the end of July, after Plaintiff reached 43 weeks, she was experiencing fever

and intense pain, was not thinking clearly, and was having urinary incontinence. She

asked Dr. Hayes if she should go to the hospital. Dr. Hayes, though, told Plaintiff he

was not concerned and he would make sure she gave birth at home.

On the 1st of August, when Plaintiff’s gestation period reached 43 weeks and

4 days and her condition was worsening, Dr. Hayes spent ten hours at Plaintiff’s

home. Plaintiff told Dr. Hayes she thought she should go to the hospital, as she was

feeling ill and experiencing urinary incontinence and confusion. But he counseled

her not to go and that inducing labor would not be the correct approach. He checked

the baby’s heartbeat, which was steady. He told her he would return the next day.

The next morning, when the gestation period reached 43 weeks and 5 days, Dr.

Hayes arrived at Plaintiff’s home. He was unable to detect the baby’s heartbeat. He

directed Plaintiff to his office where he confirmed Plaintiff’s baby had died. Plaintiff

was transported to a hospital, where the death of her baby was confirmed. Plaintiff

had a c-section performed, and her deceased baby was removed from her body.

Unknown to Plaintiff, four years prior, in 2015, Dr. Hayes had entered a

consent order with the North Carolina Medical Board in which he admitted to

violating the applicable standard in his care of four patients, each resulting in the

death of a baby. In that 2015 Consent Order, Dr. Hayes agreed he would refer any

patient experiencing a high-risk pregnancy, including any patient reaching 42 weeks

of gestation, to a maternal fetal medicine specialist for consultation, specifically that:

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Opinion of the Court

Dr. Hayes shall refer all high risk pregnancy patients to a

maternal fetal medicine specialist for a consultation. For

purposes of this consent order, “high risk” is defined as a

patient having . . . gestational age less than 36 weeks or

greater than 42 weeks . . . .

(Emphasis added.)

Also unknown to Plaintiff, in July 2019, when she was in her 42nd week of

gestation and in Dr. Hayes’s care, Dr. Hayes entered another consent order with the

Medical Board in which he admitted failing to comply with the 2015 Consent Order

by failing to refer high-risk pregnancies on two occasions and where he agreed to no

longer provide any obstetrical/gynecological services, effective 1 September 2019.

In sum, Dr. Hayes was in knowing violation of his 2015 Consent Order by

failing to refer Plaintiff to another doctor once her gestation period reached 42 weeks.

He instead chose to continue his care of Plaintiff for another twelve days, resulting

in the death of Plaintiff’s baby. Also, as a result of Dr. Hayes’s actions, Plaintiff

suffered physical and emotional harms, some of which are permanent in nature.

In her complaint and at trial, Plaintiff sought recovery only for her

noneconomic, actual damages (e.g., pain and suffering) and not for her economic,

actual damages (e.g. hospital bills) or for punitive damages. Based on Plaintiff’s

evidence, the jury awarded Plaintiff $7,500,000.00 in actual, noneconomic damages.

The trial court reduced the jury’s award to $656,730.00 pursuant to N.C.G.S. § 90-

21.19(a), which caps awards for noneconomic damages caused by ordinary negligence

in the medical malpractice context. Section 90-21.19(a) states in pertinent part:

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Except as otherwise provided in subsection (b) of this

section, in any medical malpractice action in which the

plaintiff is entitled to an award of noneconomic damages,

the total amount of noneconomic damages for which

judgment is entered against all defendants shall not exceed

[$656,730.00]. Judgment shall not be entered against any

defendant for noneconomic damages in excess of

[$656,730.00] for all claims brought by all parties arising

out of the same professional services.

N.C.G.S. § 90-21.19(a) (hereinafter the “Legislative Cap”).1 Plaintiff appeals.

II. Analysis

The Legislative Cap, enacted by our General Assembly in 2011, provides a

ceiling on the amount a plaintiff injured by medical malpractice may recover for

noneconomic damages (e.g., pain and suffering), notwithstanding a jury’s finding that

said damages suffered were higher. See id.

On appeal, Plaintiff argues the Legislative Cap is unconstitutional, violating

her right to a jury trial under Article I, section 25 of our North Carolina Constitution.

Plaintiff makes no other legal arguments in this appeal challenging the trial court’s

application of the Legislative Cap reducing the jury’s verdict. Defendants have

provided no brief in this appeal. However, due to the importance of the issue raised,

we have accepted amicus briefs to argue for and against Plaintiff’s position.

We note, pursuant to subsection (b) of the Legislative Cap statute, the cap on

1 The Legislative Cap was enacted in 2011, capping noneconomic damages in medical

malpractice actions to $500,000.00 for that year. Pursuant to the law, the Cap resets every three years

based on the change in the consumer price index. The maximum allowable damages for this present

matter under the Cap is $656,730.00.

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damages does not apply to certain verdicts in medical malpractice actions; for

instance, the cap does not apply where the “trier of fact” finds both that the plaintiff

suffered a permanent injury and that said permanent injury was suffered as a result

of the defendant’s gross negligence. N.C.G.S. § 90-21.19(b). We further note that in

this matter, however, Plaintiff, through her counsel, has made no argument the

Legislative Cap should not apply in her case based on this exception provided in

subsection (b). Plaintiff, through her counsel, does allege she suffered “permanent

injury”; her evidence, including an expert opinion, tends to show she suffers

“permanent injury”; and the jury was instructed on “permanent injury” as an element

of Plaintiff’s noneconomic damages. However, Plaintiff, through her counsel, has

made no allegation nor made any argument that Dr. Hayes’s acts in caring for her

well past 42 weeks of gestation in knowing violation of the 2015 Consent Order rose

to the level of gross negligence as a legal theory to avoid the application of the

Legislative Cap to the jury’s verdict. Further, Plaintiff, through her counsel, has

made no claim that she is entitled to punitive damages based on Dr. Hayes’s actions.

See N.C.G.S. § 90-21.19(c)(2) (stating the Legislative Cap does not affect award of

punitive damages under Section 1D-15); N.C.G.S. § 1D-15(a)(3) (stating punitive

damages are available where the defendant’s acts are “willful or wanton”).

It appears Plaintiff’s evidence were sufficient to bring the matter within

subsection (b) of the Legislative Cap statute. Had Plaintiff, through her counsel,

preserved and made arguments and the jury had found that Plaintiff had suffered

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permanent injury due to gross negligence by Dr. Hayes, the trial court would not have

had the authority under the Legislative Cap statute to reduce the jury’s award.

Plaintiff, through her counsel, though, chose to proceed solely with a claim for

noneconomic damages based on ordinary negligence, thereby putting at issue the

constitutionality of the Legislative Cap. Therefore, the only question properly before

us is whether the Legislative Cap violates Article I, Section 25 of our North Carolina

Constitution, which provides:

In all controversies at law respecting property, the ancient

mode of trial by jury is one of the best securities of the

rights of the people, and shall remain sacred and

inviolable.

N.C. Const. Art. I, § 25.

The issue presented appears to be one of first impression in North Carolina.

However, other states have grappled with whether a legislative cap on noneconomic

damages violates the right to a jury trial under their respective state constitutions.

Many state supreme courts have recognized the authority of their respective

legislatures to enact such caps as not violative of the right to a jury trial in common

law actions. See, e.g., Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 509

S.E.2d 307 (Va. 1999); Verba v. Ghaphery, 552 S.E.2d 406 (W. Va. 2001); Murphy v.

Edmonds, 601 A.2d 102 (Md. 1992); Evans ex rel. Kutch v. State, 56 P.3d 1046 (Alaska

2002); Gourley ex rel. Gourley v. Nebraska Methodist Health Sys., Inc., 663 N.W.2d

43 (2003) (Neb. 2003); Phillips v. Mirac, Inc., 685 N.W.2d 174 (Mich. 2004); Kirkland

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v. Blaine Cnty. Med. Ctr., 4 P.3d 1115 (Idaho 2000); English v. New England Med.

Ctr., Inc., 541 N.E.2d 329 (Mass. 1989); Judd v. Drezga, 103 P.3d 135 (Utah 2004).

Other state supreme courts, however, have held their respective legislatures

lack the authority to cap a plaintiff’s actual damages found by a jury, as violative of

a state constitutional right to a jury trial in common law actions. See, e.g., Atlanta

Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010); Moore v. Mobile

Infirmary Ass’n, 592 So.2d 156 (Ala. 1991); Watts v. Lester E. Cox Med. Ctrs., 376

S.W.3d 633 (Mo. 2012); Hilburn v. Enerpipe Ltd., 442 P.3d 509 (Kan. 2019); Sofie v.

Fibreboard Corp., 771 P.2d 711 (Wash. 1989).

The briefs representing each side have presented compelling arguments

supporting their respective positions, many of which were litigated in the above cases

in other states. And we invite our Supreme Court to weigh in on this issue. However,

as the case is currently before our Court, we must decide the issue presented.

Our Supreme Court has recently reiterated an appellate court’s role when

considering the constitutionality of a statute enacted by our General Assembly:

In reviewing the constitutionality of this statute, we must

presume that it is constitutional. Furthermore, we may

strike it down only if it violates the express constitutional

text and its unconstitutionality is demonstrated beyond a

reasonable doubt. Every constitutional inquiry examines

the text of the relevant provision, the historical context in

which the people of North Carolina enacted it, and this

Court’s precedents interpreting it.

State v. Chambers, 387 N.C. 521, 525 (2025) (cleaned up).

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Based on our review of opinions from our Supreme Court, as explained below,

we conclude the Legislative Cap is not unconstitutional in this case. We so hold

because Plaintiff’s cause of action against Defendants did not become a vested

property right until after the Legislative Cap was enacted in 2011 and as our General

Assembly generally has the power to determine when a remedy is legally cognizable

without impairing the right to a jury trial.

In 1904, in holding that our General Assembly lacked the authority to enact

legislation which limited a particular plaintiff’s remedy for libel to special damages

only, recognized “the right to recover actual or compensatory damages is property[,]”

but also that this property right does not vest in the injured party until “the

commission of the wrong.” Osburn v. Leach, 135 N.C. 628, 633 (1904). In this holding,

though, the Court did not rely on the right to a jury trial under our state constitution,

but rather on a different section in Article I—now codified as Section 18—providing

that “every person for an injury done him in his lands, goods, person, or reputation

shall have a remedy by due course of law[.]” Id. at 631.

In 1983, our Supreme Court recognized our General Assembly’s authority

under Article I, Section 18 of our state constitution “to define the circumstances under

which a remedy is legally cognizable” and can supplant the common law so long as

any change does not affect a vested property right in a cause of action.

The “remedy” constitutionally guaranteed “for an injury

done” is qualified by the words “by due course of law.” This

means that the remedy constitutionally guaranteed must

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be one that is legally cognizable. The legislature has the

power to define the circumstances under which a remedy is

legally cognizable and those under which it is not. The

General Assembly is the policy-making agency of our

government, and when it elects to legislate in respect to the

subject matter of any common law rule, the statute

supplants the common law rule and becomes the public

policy of the State in respect to that particular matter.

Furthermore, since plaintiff’s cause of action had not

accrued at the time this legislation was passed, no vested

right is involved. No person has a vested right in a

continuance of the common or statute law. A right cannot

be considered a vested right unless it is something more

than such a mere expectancy as may be based upon an

anticipated continuance of the present general law. We

conclude, therefore, that the statute does not violate Article

I, section 18, of our state’s constitution.

Lamb v. Wedgewood S. Corp., 308 N.C. 419, 444−45 (1983) (internal marks and

citations omitted).

More recently, in 2004, our Supreme Court reiterated that “[v]ested rights of

action are property, just as tangible things are property. A right to sue for an injury

is a right of action; it is a thing in action, and it is property.” Rhyne v. K-Mart Corp.,

358 N.C. 160, 176 (2004). In this decision, the Court recognized our General

Assembly’s authority to enact a cap on punitive damages, a type of non-compensatory

damage. Rhyne, 358 N.C. at 190. In so holding, the Court reiterated that it “gives

acts of the General Assembly great deference, [that] a statute will not be declared

unconstitutional under our Constitution unless the Constitution clearly prohibits

that statute” and that “there is a strong presumption that [a] statute [ ] is

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constitutional.” Id. at 167−68.

The Court in Rhyne also reasoned that, though punitive damages hold “an

established place in North Carolina common law[,]” our General Assembly has the

power to modify or repeal aspects of our common law:

[I]t is well settled that North Carolina common law may be

modified or repealed by the General Assembly, except for

any parts of the common law which are incorporated in our

Constitution.

The legislative branch of government is without question

the policy-making agency of our government, and when it

elects to legislate in respect to the subject matter of any

common law rule, the statute supplants the common law

rule and becomes the public policy of the State in respect

to that particular matter. The General Assembly is the

“policy-making agency” because it is a far more appropriate

forum than the courts for implementing policy-based

changes to our laws. This Court has continually

acknowledged that, unlike the judiciary, the General

Assembly is well equipped to weigh all the factors

surrounding a particular problem, balance competing

interests, provide an appropriate forum for a full and open

debate, and address all of the issues at one time[.] Included

in the General Assembly’s preeminent role in modifying the

common law on the basis of policy concerns is its power to

define the circumstances under which a remedy is legally

cognizable and those under which it is not.

Id. at 169−70 (internal marks and citations omitted) (emphasis added).2

2 In Rhyne, our Supreme Court did differentiate punitive damages and compensable damages,

whether economic or non-economic. Specifically, the Court reiterated that a plaintiff’s property

interest in compensatory damages, whether economic or non-economic, vests upon the commission of

the wrong, but that a plaintiff has no vested property interest in a punitive damage award until

judgment is entered. 358 N.C. at 177−78.

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Of significance in the present case, the Supreme Court in Rhyne cited with

approval many cases from other jurisdictions holding that a legislature could limit

remedies in causes of action. For instance, the Court cited with approval the cases

referenced above from Virginia, West Virginia, Nebraska, Alaska, Idaho, and Utah,

noting the holding in a Virginia case was “that a ceiling on medical malpractice

damages ‘was a proper exercise of legislative power and therefore did not violate the

[state constitution]’ ”). Id. at 169 (quoting Etheridge v. Med. Ctr. Hosps., 376 S.E.2d

525, 532 (Va. 1989)). The Virginia Supreme Court reasoned that

at the time the Constitution was adopted, the jury’s sole

function was to resolve disputed facts, that this continues

to be a jury’s sole function, and that the jury’s fact-finding

function extends to the assessment of damages. . . . The

medical malpractice cap . . . does nothing more than

establish the outer limits of a remedy; remedy is a matter

of law and not of fact; and a trial court applies the remedy’s

limitation only after the jury has fulfilled its fact-finding

function. Hence, we concluded, the cap does not infringe

upon the right to a jury trial.

Pulliam, 509 S.E.2d at 312.

Our Supreme Court in Rhyne then recognized our General Assembly “has

similarly modified other portions of our common law without violating the North

Carolina Constitution[,]” including “limit[ing] liability by enacting statutes of

repose[.]” Rhyne, 358 N.C. at 171. And in that vein, the Court agreed with the quote

from the Nebraska and Idaho cases that, since the legislative branch could enact a

statute of repose, it could limit remedies:

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Because it is properly within the power of the legislature

to establish statutes of limitations, statutes of repose,

create new causes of action, and otherwise modify the

common law without violating separation of

powers principles, it necessarily follows that the legislature

also has the power to limit remedies available to plaintiffs

without violating the separation of powers doctrine.

Id. at 171 (quoting Gourley, 663 N.W.2d at 76−77, from Nebraska, and Kirkland, 4

P.3d at 1122, from Idaho) (emphasis added).

In 2021, our Court weighed in, specifically in the context of an action seeking

compensatory damages alleging nuisance under the Right to Farm Act, stating that

our “General Assembly has modified the common law and statutory cause of actions

for nuisance claims and relevant defenses. As with many other caps on compensation

and remedies enacted in other areas of civil tort law, HB 467 did not impair nor

abolish the right to a jury trial.” Rural Empowerment Ass'n for Cmty. Help v. State,

281 N.C. App. 52, 65 (2021).

And just last year, in 2024, our Supreme Court, recognizing “[w]here there is

a right, there is a remedy[,]” held that a plaintiff is not constitutionally entitled to a

“complete remedy—that is, the remedy that is necessary to make the plaintiff whole

again.” Washington v. Cline, 385 N.C. 824, 825, 828 (2024).

In sum, guided by the above cases from our Supreme Court and our Court, we

conclude the Legislative Cap is constitutional as applied to those malpractice claims

based on “wrongs” which did not occur prior to the enactment of the Legislative Cap.

In this case, Plaintiff did not have a property right in her claims against Defendants

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until 2019, years after the Legislative Cap was enacted, and the Legislature has the

power to “define the circumstances under which a remedy is legally cognizable”

without impairing the right to a jury trial. Rural Empowerment, 281 N.C. App. at

65. Therefore, we conclude the Legislative Cap imposed by the trial court reducing

the jury’s award did not violate Plaintiff’s right to a jury trial.

AFFIRMED.

Judges COLLINS and WOOD concur.

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