Griffin v. Brown

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-524

Filed 4 February 2026

Forsyth County, No. 22CVS005724-330

MICHAEL EUGENE GRIFFIN, Plaintiff,

v.

KENNETH R. BROWN, DDS; UNIVERSITY DENTAL ASSOCIATES; SCOTT F.

TUCKER, DDS, MS, PA d/b/a UNIVERSITY DENTAL ASSOCIATES and/or UDA

DENTAL and/or UDA and/or UDA-COMP REHAB, Defendants.

Appeal by plaintiff from judgment entered 15 October 2024 by Judge John O.

Craig III in Forsyth County Superior Court. Heard in the Court of Appeals 14

January 2026.

Angela Gray Law, P.A., by Angela N. Gray, for the plaintiff-appellant.

Cranfill Sumner LLP, by Samuel H. Poole, Jr., Steven A. Bader, and Kelley M.

Petcavich, for the defendants-appellees.

TYSON, Judge.

Michael Eugene Griffin (“Plaintiff”) appeals from order of summary judgment

dismissing all of Plaintiff’s negligence claims with prejudice entered for all individual

and corporate Defendants on 15 October 2024. We affirm.

I. Background

Plaintiff presented to least fourteen doctors’ appointments with various

Defendant physicians and facilities from June 2020 to May 2021.

GRIFFIN V. BROWN

Opinion of the Court

A. Year of 2020

Plaintiff saw Dr. John Byers, an otolaryngologist, a specialist in ear, nose, and

throat, for fluid build-up in his left ear on 2 June 2020. Dr. Byers examined Plaintiff’s

nasopharynx, which disclosed no tumor, lesions, or swelling. A tube was inserted to

improve drainage. A subsequent Magnetic Resonance Image (“MRI”) scan showed no

tumor.

Plaintiff followed up with Dr. Byers on 13 July 2020. The doctor noted “[t]here

was no finding of any tumor”; Plaintiff had no pain, no drainage, and was “doing

great.”

Eleven days later, on 24 July 2020, Plaintiff saw Dr. Ioana Pogacean, a dentist

at University Dental Associates (“UDA”). Plaintiff reported he had been having

trouble opening his mouth for about a month, and experienced pressure when he

attempted to do so. While performing an examination Dr. Pogacean felt a 1.5

centimeter mass under Plaintiff’s left lower jaw. Dr. Pogacean took an x-ray and

noticed a dark spot. Dr. Pogacean referred Plaintiff to Dr. Kenneth T. Brown,

(“Defendant’”) a specialist and oral surgeon, whom Plaintiff saw the same day.

Dr. Brown performed a visual and palpatory (touch) examination and of

Plaintiff’s mouth, head, and neck to screen him for cancer. He noted no masses and

no lesions and concluded no presence of cancer. Dr. Brown diagnosed Plaintiff with

a temporomandibular joint disorder, or “TMJ.” In addressing Plaintiff’s self-reported

concern, Dr. Brown prescribed Flexeril, Mobic, and a soft diet for the next thirty days.

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Opinion of the Court

Plaintiff followed up with Defendant Dr. Brown on 28 August 2020. Plaintiff

reported feeling better and being able to open his mouth wider. Dr. Brown performed

the same oral cancer screening as he had performed earlier, and again observed no

tumors, masses, or lesions in Plaintiff’s mouth, throat, or neck.

Plaintiff visited his primary care provider at Oak Street Health three times

during the latter half of 2020: October 21, November 18, and on December 22. The

appointment records from these visits document Plaintiff had no lesions, masses,

swelling, or tumors in his mouth or throat. Plaintiff did not report any complaints

regarding these bodily regions.

B. Year of 2021

Plaintiff presented for a dental appointment on 29 January 2021. The

appointment notes do not mention any complaints regarding Plaintiff’s mouth,

throat, jaw, or neck.

Plaintiff visited his primary care provider at Oak Street Health two more times

on 16 February 2021 and 9 March 2021. The records from these visits do not

document any complaints regarding Plaintiff’s mouth, neck, or throat, and

additionally, note “no gross masses or lesions” and “no deformity” in his neck area.

Plaintiff visited Dr. Mark Petrola, a dentist, and complained of swelling in his

left cheek on 26 March 2021. Dr. Petrola performed a visual and palpatory

examination and noted Plaintiff had a “hard mass” in his left cheek and the back of

his left upper palate appeared to have a red and white lesion, which bled upon touch.

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Opinion of the Court

Dr. Petrola referred Plaintiff to an oral and maxillofacial (“OMF”) surgeon, Dr. Mark

Shehan. In April of 2021, the OMF surgeon performed a biopsy on the lesion on

Plaintiff’s left palate.

About six weeks later, on 10 May 2021, Plaintiff had an initial consultation

with two otolaryngologists at Wake Forest Baptist Medical Center (“WFBMC”).

These specialists documented a nasopharyngeal (top of throat) mass that extended to

Plaintiff’s left hard and soft palate. They biopsied the mass and ordered diagnostic

imaging.

Plaintiff’s OMF surgeon received the results from the April biopsy on 12 May

2021. The biopsy results confirmed squamous cell carcinoma. The specialists at

WFBMC later confirmed these results. Plaintiff’s doctors at WFBMC diagnosed him

with naso-oropharyngeal cancer at the back of he nasal cavity and top of throat. He

began receiving cancer treatment from a radiation oncologist.

C. Lawsuit

On 13 July 2022, Plaintiff sent Dr. Brown and UDA (“Defendants”) a pre-suit

settlement demand. The demand included Plaintiff’s medical records from: (1) Dr.

Byers, the otolaryngologist Plaintiff initially saw June of 2020 when he complained

of fluid build-up in his left ear; (2) UDA, starting in 2019 and going through March

of 2021; (3) the OMF surgeon who performed the biopsy in April of 2021; (4) WFBMC,

starting in May of 2021; and, (5) select records from Plaintiff’s primary care provider

at Oak Street Health.

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Opinion of the Court

On 8 December 2022, Plaintiff filed suit against Defendants for: (1) negligence;

(2) corporate negligence; (3) negligent supervision; (4) negligent infliction of

emotional distress; and, (5) intentional infliction of emotional distress. He essentially

argued Dr. Brown should have ordered a biopsy of the mass on his lower left jaw in

July of 2020, and his failure caused a delayed cancer diagnosis.

Plaintiff identified Dr. William Benzing as his Rule 9(j) expert witness.

Additionally, Plaintiff designated three experts to review and opine on causation: Dr.

Benzing, Dr. Wayne Roccia, and Dr. Mike Armstrong, who did not provide an affidavit

or deposition testimony.

On 12 August 2024, Dr. Brown and UDA filed and served their motion seeking

summary judgment for all of Plaintiff’s claims. The same filing also sought for the

court to exclude the standard of care, causation, and damages opinions by Dr.

Armstrong, and to exclude the causation and damages opinions of Dr. Benzing and

Dr. Roccia.

Plaintiff voluntarily dismissed his claims for negligent infliction of emotional

distress and intentional infliction of emotional distress on 24 September 2024, and

Defendants withdrew their motion to exclude the testimony of Plaintiff’s Rule 9(j)

designated experts.

The superior court heard Defendants’ motion for summary judgment the next

day. granted the motion, and dismissed all of Plaintiff’s remaining claims with

prejudice by order on 15 October 2024. Plaintiff timely appealed on 12 November

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Opinion of the Court

2024.

II. Jurisdiction

This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b)(1)

(2023).

III. Issues

Plaintiff argues the trial court committed reversible error in granting

summary judgment for Defendants on: (1) Plaintiff’s negligence claims against Dr.

Brown, where Plaintiff alleges his evidence tended to show Dr. Brown’s treatment

violated the accepted professional standard of care; (2) Plaintiff’s claims against UDA

on corporate negligence claim; and, (3) Plaintiff’s claims against UDA on negligent

supervision, hiring, training, and retention of Dr. Brown.

IV. Standard of Review

“[T]he standard of review on appeal from summary judgment is whether there

is any genuine issue of material fact and whether the moving party is entitled to

judgment as a matter of law.” Willis v. Town of Beaufort, 143 N.C. App. 106, 108, 544

S.E.2d 600, 603 (2001) (citation omitted); N.C. Gen. Stat. § 1A-1, Rule 56(c) (2023).

The moving party has the burden of establishing the lack of any triable issue of fact.

Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353

(1985) (citation omitted).

A defendant may show entitlement to summary judgment by “(1) proving that

an essential element of the plaintiff’s case is nonexistent, or (2) showing through

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discovery that the plaintiff cannot produce evidence to support an essential element

of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative

defense.” James v. Clark, 118 N.C. App. 178, 181, 454 S.E.2d 826, 828 (1995) (citation

omitted).

Summary judgment is not appropriate where matters of credibility and

determining the weight of the evidence exist. Moore v. Fieldcrest Mills, Inc., 296 N.C.

467, 470, 251 S.E.2d 419, 422 (1979) (citation omitted). “Once the party seeking

summary judgment makes the required showing, the burden shifts to the nonmoving

party to produce a forecast of evidence demonstrating specific facts, as opposed to

allegations, showing that he can at least establish a prima facie case at trial.” Gaunt

v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000).

To establish reversible error on the part of the trial court, Plaintiff must

forecast evidence tending to show Defendants failed to exercise proper care in the

performance of a legal duty which proximately caused and resulted in injury to him.

“To hold otherwise . . . would be to allow plaintiffs to rest on their pleadings,

effectively neutralizing the useful and efficient procedural tool of summary

judgment.” Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 64, 414 S.E.2d 339,

342 (1992).

V. Analysis

Plaintiff argues the trial court erred in granting summary judgment to

Defendants on the claims of (1) ordinary negligence by Dr. Brown; (2) corporate

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Opinion of the Court

negligence by UDA; and (3) negligent hiring and supervision by UDA. We address

each argument in turn.

A. Ordinary Negligence in Medical Malpractice

Plaintiff argues a genuine issue of material fact exists of whether Dr. Brown’s

breach of the applicable standard of care proximately caused Plaintiff’s injuries.

Plaintiff also argues he sufficiently forecast evidence to establish causation to survive

summary judgment.

1. Proximate Cause

To prove medical negligence, a plaintiff must proffer evidence establishing the

plaintiff’s injuries were proximately caused by the defendant’s breach of the

applicable standard of care. Cousart v. Charlotte-Mecklenburg Hosp. Auth., 209 N.C.

App. 299, 303, 704 S.E.2d 540, 543 (2011). Proximate cause is

a cause which in natural and continuous sequence,

unbroken by any new and independent cause, produced the

plaintiff’s injuries, and without which the injuries would

not have occurred, and one from which a person of ordinary

prudence could have reasonably foreseen that such a

result, or consequences of a generally injurious nature, was

probable under all the facts as they existed.

Hawkins v. Emergency Med. Physicians of Craven Cnty., PLLC, 240 N.C. App. 337,

341–42, 770 S.E.2d 159, 162–63 (2015) (citation omitted).

A plaintiff in a medical malpractice case must rely upon expert testimony to

establish proximate cause, if the purported negligence is not obvious or per se speaks

for itself. Id. at 342, 770 S.E.2d at 163 (citation omitted). “[A]n expert is not

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Opinion of the Court

competent to testify as to a causal relation which rests upon mere speculation or

possibility.” Young v. Hickory Bus. Furn., 353 N.C. 227, 230, 538 S.E.2d 912, 915

(2000) (citation omitted). An expert’s conclusory statement, without factual support,

is insufficient to raise a genuine issue of material fact of proximate cause. Liller v.

Quick Stop Food Mart, Inc., 131 N.C. App. 619, 625, 507 S.E.2d 602, 606 (1998).

In response to Defendant’s supported motion for summary judgment ,plaintiffs

must establish a prima facie case, “which includes articulating proximate cause with

specific facts couched in terms of probabilities.” Hawkins, 240 N.C. App. at 342, 770

S.E.2d at 163. “[E]vidence connecting medical negligence to injury . . . must be

probable, not merely a remote possibility.” Cousart, 209 N.C. at 302, 704 S.E.2d at

543. Prior decisions demonstrate:

where a plaintiff alleges that he or she was injured due to

a physician’s negligent failure to diagnose or treat the

plaintiff’s medical condition sooner, the plaintiff must

present at least some evidence of a causal connection

between the defendant’s failure to intervene and the

plaintiff’s inability to achieve a better ultimate medical

outcome.

Lord v. Beerman, 191 N.C. App. 290, 294, 664 S.E.2d 331, 334 (2008); see, e.g., Lindsey

v. Clinic for Women, 40 N.C. App. 456, 253 S.E.2d 304 (1979); Bridges v. Shelby

Women’s Clinic, P.A., 72 N.C. App. 15, 323 S.E.2d 372 (1984).

Even where a plaintiff has introduced some evidence of a

causal connection between the defendant's failure to

diagnose or intervene sooner and the plaintiff's poor

ultimate medical outcome, our Court has held that such

evidence is insufficient if it merely speculates that a causal

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Opinion of the Court

connection is possible.

Lord, 191 N.C. App. at 295, 664 S.E.2d at 335; compare with Turner v. Duke

University, 325 N.C. 152, 381 S.E.2d 706 (1989).

2. Argument

Plaintiff argues Dr. Brown’s failure to perform the appropriate examination

“led to a misdiagnosis of TMJ and delayed a diagnosis of cancer, which more likely

than not caused “the morbidities associated with . . . Plaintiff’s medical condition after

July 24, 2020.”

Plaintiff initially identified three expert witnesses to opine on standard of care,

causation, and damages. Only two of those experts gave deposition testimony: Dr.

Benzing and Dr. Roccia.

Dr. Benzing asserted several criticisms of Dr. Brown, in his deposition

testimony. He criticized Dr. Brown as having violated the appropriate standard of

care by failing to properly document his examination of Plaintiff to indicate what he

observed and was not observed in Plaintiff’s mouth, and by failing to conduct

additional testing. He opined Dr. Brown missed an opportunity to diagnose Plaintiff’s

cancer in July of 2020 and the delay in Plaintiff’s treatment more likely than not

caused increased morbidity from his disease.

However, Dr. Benzing also testified the swelling in the lower left jaw Plaintiff

presented with to Dr. Brown in July of 2020 was not necessarily the same cancer

doctors later found in the back of the roof of Plaintiff’s mouth in March of 2021,

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Opinion of the Court

although it may have been a symptom.

Q. Okay. Are you prepared to express any opinion that

the left-sided submandibular mass noted by Dr. Pogacean

in the referral slip was a cancerous tumor as of July 24th,

2020?

A. No, I cannot say . . . . that was a cancerous tumor,

no.

When asked if he was planning to express an opinion asserting the swelling in

Plaintiff’s lower left jaw led to the cancer Plaintiff was eventually diagnosed with, Dr.

Benzing testified he could not express that opinion, only asserting the swelling was

cause for concern, “likely a sign of something that’s going on.” Counsel for Defendants

asked Dr. Benzing:

Q. . . . Is it fair to say, Doctor, that even if you believe

there’s a greater chance of improvement if the cancer was

identified sooner, you cannot quantify that chance? . . .

You’d be speculating if you were to express an opinion at

trial as to what the improvement degree might be?

A. I guess I’d be speculating, but most people know that

if you can get a cancer earlier when it’s smaller, it’s . . .

much less morbid . . . .

Q. But you can’t quantify that, especially as to this

particular cancer? . . .

A. No. You’d have to have an oncologist or

otolaryngologist who specializes in cancer treatment to do

that.

Dr. Roccia opined when Plaintiff initially visited Defendant Dr. Brown

complaining of difficulty opening his mouth, Dr. Brown had failed to perform the

proper examination, failed to properly document the examination, and he incorrectly

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Opinion of the Court

treated the patient, effectively violating the appropriate standard of care. However,

Dr. Roccia also testified it was not his opinion Plaintiff had cancer in his lower left

jaw at the time of Dr. Brown’s examinations. Counsel for Defendants asked Dr.

Roccia:

Q. Are you going to be offering any opinions at trial as

to when [Plaintiff] first developed cancer?

A. No.

....

Q. Are you going to be offering any opinions at trial as

to how [Plaintiff’s] cancer progressed?

A. No.

Q. Are you going to express any opinion at trial that the

lesion or concern mentioned by Dr. Pogacean before the

referral to Dr. Byers was cancerous?

A. I don’t know if it was cancerous or not.

....

Q. Even if you believe there was a greater chance of

improvement if the cancer was identified sooner, you’d be

speculating if you were to express an opinion at trial as to

what that improvement degree might be, right?

A. I’m not an oncologist. Therefore, I’m not going to

comment on the progression of any kind of cancerous

lesion.

....

Q. Is it fair to say that you cannot testify with any

degree of reasonable medical certainty that the scan

results would have been any different six months or three

months sooner than the CT and PET scans performed in

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May of 2021?

....

A. . . . I cannot state at this time whether those scans

or the progression of any kind of lesion that was or was not

there at that time would not have been smaller. Generally

speaking, cancerous lesions grow, and based on what type

of cancer, they grow at different rates. So if something was

there, it should have been there at previous images, even

several months beforehand . . . .

Plaintiff has not forecast sufficient evidence tending to show Dr. Brown’s

breach of his duty of care caused the injuries he suffered.. Although Plaintiff’s experts

believed Dr. Brown violated his duty of care to Plaintiff, they could not opine

Plaintiff’s oropharyngeal cancer was directly related to the swelling present in

Plaintiff’s lower left jaw in July of 2020, or Plaintiff even had a cancer to diagnose

when Dr. Brown had examined him.

Plaintiff’s experts speculated the two were likely related, and if Plaintiff’s

cancer had been caught earlier, Plaintiff’s injuries would not be as great. Neither

witness testified to “specific facts couched in terms of probabilities” as to how much

better Plaintiff’s injuries would have been in 2021 when Plaintiff’s oropharyngeal

cancer was detected had Dr. Brown not purportedly violated the standard of care. See

Hawkins, 240 N.C. App. at 342, 770 S.E.2d at 163. “Proof of proximate cause in a

malpractice case requires more than a showing that a different treatment would have

improved the patient’s chances of recovery.” White v. Hunsinger, 88 N.C. App. 382,

386, 363 S.E.2d 203, 206 (1988). Because Plaintiff cannot show proximate cause, we

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Opinion of the Court

affirm summary judgment in favor of Dr. Brown on the issue of ordinary negligence.

B. Corporate Negligence and Negligent Supervision

Plaintiff argues the trial court erred in granting summary judgment to

Defendants on the claims of corporate negligence and negligent supervision. We

disagree.

In order to survive a motion for summary judgment, a plaintiff asserting

corporate negligence and negligent supervision must show proximate cause,

defendant’s alleged omission contributed to his injuries. See Bost v. Riley, 44 N.C.

App. 638, 648, 262 S.E.2d 391, 397 (1980); see also White, 88 N.C. App. at 387, 363

S.E.2d at 206; Gower v. Davidian, 212 N.C. 172, 193 S.E.2d 28 (1937).

As held above, Plaintiff has failed to forecast Dr. Brown’s negligence

proximately caused his injuries, and Plaintiff cannot also prove his corporate

negligence and negligent supervision claims. Plaintiff has not shown UDA’s alleged

omission caused his injuries, Plaintiff’s claims fail and summary judgment was

properly granted to Defendants.

VI. Conclusion

Defendants made a showing through competent evidence to rebut Plaintiff’s

claims and to show entitlement to summary judgment. Upon such showing, it became

incumbent upon Plaintiff to produce a forecast of evidence showing he could at least

establish a prima facie case at trial. Gaunt, 139 N.C. App. at 784-85, 534 S.E.2d at

664. This he failed to do. The trial court properly entered summary judgment on

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Opinion of the Court

behalf of Defendants. The order appealed from is affirmed. It is so ordered.

AFFIRMED.

Judge Wood concurs.

Judge Freeman concurs in result only.

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