Wyer v. Alamance Reg'l Med. Ctr.

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance with

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-693

Filed 18 February 2026

Alamance County, No. 20CVS002215-000

ESTATE OF HENRY WYER, By and Through the Administrators of the Estate of

BENITA WYER and LAMONT WYER, Plaintiffs,

v.

ALAMANCE REGIONAL MEDICAL CENTER, INC. d/b/a CONE HEALTH

ALAMANCE REGIONAL MEDICAL CENTER, Defendant.

Appeal by plaintiffs from Order entered 30 January 2025 by Judge R. Stuart

Albright in Alamance County Superior Court. Heard in the Court of Appeals

27 January 2026.

Kenneth M. Johnson, P.A., by Kya Johnson, for plaintiffs-appellants.

Waldrep Wall Babcock & Bailey PLLC, by J. Dennis Bailey and Peyton M.

Pawlik, for defendant-appellee.

ARROWOOD, Judge.

The Estate of Henry Wyer, by and through Administrators Benita Wyer and

Lamont Wyer (“plaintiffs”), appeal the Order of the Alamance County Superior Court

granting the Motion for Summary Judgment in favor of Alamance Regional Medical

Center (“defendant”), filed 30 January 2025. For the following reasons, we affirm.

WYER V. ALAMANCE REG. MED. CTR.

Opinion of the Court

I. Background

This case arose after the death of Mr. Henry Wyer (“Mr. Wyer”) on

18 June 2018 at defendant’s facility. The record on appeal tends to show the following

series of events, as narrated by the pleadings, Mr. Wyer’s extensive medical records,

and subsequent affidavits and depositions from the parties and their expert

witnesses.

A. Statement of Facts

Before his death in June 2018, Mr. Wyer was a 75-year-old man with extensive

chronic health issues. His various ailments left him in need of ongoing medical

attention. In addition to Paget’s disease, Mr. Wyer suffered residual pain from a work

injury and subsequent neck surgery, a UTI [urinary tract infection], an enlarged

prostate with possible malignancy, and failure to thrive with ongoing weight loss and

poor appetite. He required use of a cane and walker, an indwelling catheter, and a

home health aide.

Throughout the spring of 2018, Mr. Wyer endured a series of hospitalizations.

In March 2018, while hospitalized at Duke Medical Center, Mr. Wyer was

recommended for transfer to a nursing home, but his daughter Benita Wyer

(“Benita”) chose to care for him at her home. Mr. Wyer returned to Duke in April 2018

after a possible stroke. He saw his physician at Duke in May 2018, who recorded that

Mr. Wyer suffered frequent falls, and he was then admitted to Peak Resources in

Alamance for 18 days before returning home. On 5 June, Mr. Wyer’s home health

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care aide service requested a referral from Duke Medical Center for hospice

treatment, as his condition had further declined.

The Record contains a Medical Orders for Scope of Treatment form (“the MOST

form”) preceding his admission at defendant’s facility, dated 11 May 2018, recording

Mr. Wyer’s wishes for attempted cardiopulmonary resuscitation (“CPR”) and the full

scope of medical interventions. The MOST form is not signed by Mr. Wyer, but is

signed by Benita as Mr. Wyer’s representative. It also leaves blank the required

name and contact information of a physician. In her deposition, Benita conceded that

she had nothing signed or executed by Mr. Wyer appointing her as his power of

attorney or healthcare power of attorney.

Mr. Wyer arrived at defendant’s facility on 13 June 2018, complaining that he

had not had a bowel movement for two weeks. He was seen by admitting physician

Dr. Sona Patel (“Dr. Patel”) and admitted for severe constipation, ileus, and partial

small bowel obstruction. Dr. Patel described him as “a 75 y.o. male with a known

history of End-stage COPD [Chronic Obstructive Pulmonary Disease], cervical

spondylitis, BPH [Benign Prostatic Hyperplasia] with chronic Foley indwelling

catheter since March 2018, failure to thrive, history of pancreatic mass and history

of PE [pulmonary embolism] . . . with complaints of abdominal pain and intractable

nausea vomiting.” Dr. Patel described his present status generally: “Patient has been

overall declining according to the daughter and has been followed by home health

was recommended patient undergo hospice eval given his overall failure to thrive and

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Opinion of the Court

decline in general health with severe malnutrition and weight loss . . . He has been

bedbound for last several weeks.” Dr. Patel also noted: “Patient is a full code this was

discussed with patient’s daughter and patient in the ER.” Recording his neurological

and psychological status, Dr. Patel confirmed that Mr. Wyer was weak but was

“negative for sensory change, speech change and focal weakness” and “negative for

depression and hallucinations” and “not nervous/anxious.” Mr. Wyer was “alert and

oriented.” In ordering a palliative consultation due to his “overall decline,” Dr. Patel

confirmed that both Benita and Mr. Wyer understood his “very poor prognosis.” Dr.

Patel also noted, “CODE STATUS discussed once to be a full code.”

Mr. Wyer’s medical record provides extensive notes from Nurse Practitioner

Megan Mason (“NP Mason”), who provided Mr. Wyer’s palliative care consultation on

14 June 2018. NP Mason recorded that she “met with patient and daughter at

bedside to discuss diagnosis, prognosis, GOC [goals of care], EOL [end-of-life] wishes,

disposition and options.” She recorded that Mr. Wyer said he did not want to “keep

coming back and forth to the hospital.” She recorded that Benita “wants to focus on

‘keeping him comfortable and keeping him home’” to avoid future hospitalizations,

that she wanted unnecessary medications to be discontinued, and that they discussed

“transition to comfort approach with hospice on discharge where focus will be comfort,

quality, and dignity.” She recorded that both “[p]atient and daughter agree with this

plan.” She records that Mr. Wyer’s code status was also discussed:

Educated on recommendation for DNR/DNI [Do Not

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Resuscitate/Do Not Intubate] with age, frailty, and

multiple comorbidities. Daughter states “if he had a

chance of surviving I would want this for him” but also

understands this will likely be more harm than good to him

at the end of his life. Explained resuscitation/life support

not falling in line with hospice philosophy at home. She

agrees with DNR/DNI and allowing him to die a natural

death.

NP Mason further recorded: “DNR/DNI now after discussion with patient/daughter.

Durable DNR placed in chart.” Accordingly, Mr. Wyer’s Code Status was altered to

“DNR.” His prognosis is here listed as “< 6 months: if not significantly less . . . Family

opts for comfort.” She recorded that Mr. Wyer was “alert and oriented to person,

place, and time . . . He is cooperative. He appears ill.” NP Mason wrote that her

consultation with Mr. Wyer and Benita lasted 70 minutes.

On the following day, Mr. Wyer was communicative, “asking to eat” and “will

speak when spoken to.” Benita had further conversations with palliative care RN

Karen Robertson (“RN Robertson”) to discuss plans for hospice, “to initiate education

regarding hospice services, philosophy and team approach to care with

understanding voiced.” RN Robertson noted at this time the “[s]igned DNR in place

in patient’s chart.”

Mr. Wyer died four days later, on 18 June 2018. Sixteen individual diagnoses

were recorded at his time of death:

1. Asystole

2. Severe constipation with ileus

3. Stomach dilation as well as esophageal dilation

4. History of pulmonary embolism

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5. Sinus tachycardia

6. Decubitis ulcer stage II

7. Elevated liver functions secondary to history of

hepatitis B

8. Severe caloric protein malnourished patient with

cachexia

9. Chronic indwelling Foley with abnormal UA

10. End-stage COPD

11. Cervical spondylitis

12. BPH with chronic indwelling Foley catheter

13. History of pancreatic mass

14. Coronary artery disease

15. Paget’s disease of the bone

16. Partial paralysis of . . . both lower extremities

Earlier on the day of his death, RN Robertson visited Mr. Wyer to discuss hospice

care at home following discharge, noting that he was “alert, quietly interactive.” She

also spoke with Benita via telephone.

However, at 6:25 p.m. RN Monique Jacobs was informed that Mr. Wyer’s

monitor showed asystole, or complete heart stoppage, and upon entering his room,

she observed him “with no breath sounds, no heart rate, and no blood pressure,” a

“small amount of vomit on his chin,” and cold hands. Mr. Wyer was pronounced dead

shortly thereafter, and his family was notified. Benita returned to the hospital and

claimed, contrary to NP Mason’s earlier notes, that “she never stated that she wanted

her father to be DO NOT RESCUSCITATE.” Dr. Shreyang Patel recorded Benita’s

claim in Mr. Wyer’s records and reproduced in full NP Mason’s notes from the 14 June

meeting.

B. Procedural History

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As his children, both Benita and Mr. Lamont Wyer (“Lamont”) were qualified

as administrators of Mr. Wyer’s estate. They filed their initial complaint against

defendant on 17 December 2020, alleging the negligent direction of an unauthorized

Do Not Resuscitate instruction, the negligent carrying out of the allegedly

unauthorized instruction, and breach of contract for alleged failure to comply with an

earlier written agreement to resuscitate Mr. Wyer. After a hearing on

30 August 2021 in Alamance County Superior Court, the Honorable Kevin M. Bridges

presiding, the trial court granted defendant’s motion to dismiss the complaint.

Plaintiffs’ initial complaint had not established that an expert witness reviewed the

medical care and asserted that it fell below the applicable standard of care, as

required by Rule 9(j) of the North Carolina Rules of Civil Procedure. Est. of Wyer by

& through Wyer v. Alamance Reg’l Med. Ctr., Inc., 2022-NCCOA-940, ¶ 7, 287 N.C.

App. 395 (2022).

Plaintiffs appealed to this Court, which filed its unpublished opinion on the

matter on 29 December 2022. Id. We affirmed the dismissal of the breach of contract

claim, as “North Carolina does not recognize breach of contract as a legal theory

under which one can recover for medical malpractice.” Id. at ¶ 22 (citing Lackey v.

Bressler, 86 N.C. App. 486 (1987)). However, we vacated the trial court’s Order with

respect to the negligent malpractice claim, finding that the heightened pleading

standard was not required. Id. at ¶ 24. Plaintiffs had alleged facts implicating the

res ipsa loquitur doctrine, which can be invoked where “no proof of the cause of an

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injury is available, the instrument involved in the injury is in the exclusive control of

the defendant, and the injury is of a type that would not normally occur in the absence

of negligence” and where the plaintiff has “in part, alleged facts from which a

layperson could infer negligence by the defendant based on common knowledge and

ordinary human experience.” Id. at ¶ 16 (citations omitted).

Because plaintiffs had averred that the DNR order’s origin was unknown but

would have been under defendant’s exclusive control, and because an unauthorized

DNR generally would not have been placed in Mr. Wyer’s records absent negligence,

“the facts of the case justify application of the doctrine and the nature of the

occurrence and the inference to be drawn supply the requisite degree of proof to carry

the case to the jury without direct proof of negligence and thus expert review and

certification.” Id. at ¶ 17 (citations omitted) (cleaned up). Accordingly, plaintiffs

proceeded with their suit.

Following discovery, affidavits, and depositions from both parties, defendant

moved for summary judgment on 30 December 2024 on the grounds that no genuine

issues of material fact existed, entitling defendant to judgment as a matter of law,

because there is “no evidence of negligence by Defendant or that any such negligence

proximately caused injury or damage to Plaintiffs.” After a hearing held on

27 January 2025 in Alamance County Superior Court, the Honorable R. Stuart

Albright presiding, the trial court in its subsequent Order granted summary

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judgment, agreeing that there were no genuine issues of material fact after review of

the pleadings, discovery, depositions, and affidavits.

II. Discussion

When a trial court grants summary judgment, this Court reviews that Order

de novo. Dallaire v. Bank of Am., 367 N.C. 363, 367 (2014) (citations omitted).

Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, if any, show 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.”

N.C.G.S. § 1A-1, Rule 56(c) (2013). The movant is entitled to summary judgment

when it establishes the absence of any triable issue “by proving that an element of

the opposing party’s claim is non-existent, or by showing through discovery that the

opposing party cannot produce evidence to support an essential element of his claim

or cannot surmount an affirmative defense which would bar the claim.” Collingwood

v. General Elec. Real Est. Equities, Inc., 324 N.C. 63, 66 (1989) (citations omitted).

After the movant meets this burden, the nonmovant must “produce a forecast

of evidence demonstrating that the plaintiff will be able to make out at least a prima

facie case at trial.” Id. “The movant’s papers are carefully scrutinized and those of

the adverse party are indulgently regarded.” Dobson v. Harris, 352 N.C. 77, 83 (2000)

(citations omitted, cleaned up). “All facts asserted by the [nonmoving] party are taken

as true and . . . viewed in the light most favorable to that party.” Id. However, the

nonmoving party “may not rest upon the mere allegations or denials of his pleading,

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but his response, by affidavits or as otherwise provided in this rule, must set forth

specific facts showing that there is a genuine issue for trial.” N.C.G.S. § 1A-1, Rule

56(e) (2013).

In considering a motion for summary judgment, the trial court’s function “is

strictly confined to determining whether genuine issues of material fact exist and

does not extend to resolving such issues.” Liberty Mut. Ins. Co. v. Pennington, 356

N.C. 571, 579 (2002). An issue of material fact is genuine if “supported by substantial

evidence.” Dewitt v. Eveready Battery Co., 335 N.C. 672, 681 (2002). “Substantial

evidence is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion” and means “more than a scintilla or a permissible inference.”

Thompson v. Wake Cty. Bd. Of Educ., 292 N.C. 406, 414 (1977) (quotes omitted).

A. Plaintiffs’ Res Ipsa Loquitur Claim

“In a medical malpractice action, the plaintiff has the burden of showing (1)

the applicable standard of care; (2) a breach of such standard of care by the defendant;

(3) the injuries suffered by the plaintiff were proximately caused by such breach; and

(4) the damages resulting to the plaintiff.” Purvis v. Moses Cone Mem’l Hosp. Sev.

Corp., 175 N.C. App. 474, 477 (2006) (internal quotation marks and citation omitted).

In a medical malpractice action, the plaintiff must demonstrate, through the

testimony of a qualified expert, that the alleged treatment administered by the

defendant provider was in negligent violation of the accepted standard of care. Tripp

v. Pate, 49 N.C. App. 329, 332 (1980).

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Alternately, North Carolina recognizes the doctrine of res ipsa loquitur in

medical malpractice cases “where the facts or circumstances accompanying an injury

by their very nature raise a presumption of negligence on the part of the defendant.”

Howie v. Walsh, 168 N.C. App. 694, 698 (2005). The plaintiff must plead facts “from

which a layperson could infer negligence by the defendant based on common

knowledge and ordinary human experience.” Smith v. Axelbank, 222 N.C. App. 555,

559 (2012) (citing Diehl v. Koffer, 140 N.C. App. 375, 378–79 (2000)). First, this

requires that the injury be “of a type that does not ordinarily occur in the absence of

some negligent act or omission.” Alston v. Granville Health Sys., 221 N.C. App. 416

(2012) (citation omitted), disc. rev. dismissed, 336 N.C. 247 (2012). Second, the

“instrumentality involved in the accident” must have been “under the defendant’s

control.” Id. Last, “the res ipsa loquitur doctrine is only applicable where ‘there is no

direct proof of the cause of the injury available to the plaintiff.’ ” Robinson v. Duke

Univ. Health Sys., Inc., 229 N.C. App. 215, 226 (2013) (quoting Yorke v. Novant

Health, Inc., 192 N.C. App. 340, 352 (2008)).

Plaintiffs argue on appeal that the trial court erred in dismissing their claim

under the doctrine of res ipsa loquitur, arguing that the doctrine continues to apply,

as a genuine issue of material fact exists as to whether Mr. Wyer or his agent

authorized the DNR order. But plaintiffs offer a flawed analysis of the standard

governing application of this doctrine.

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Plaintiffs are correct that the placement of an unauthorized DNR order in a

patient’s medical files, later causing injury or death to the plaintiff due to the

defendant’s subsequent denial of resuscitative measures, would not ordinarily occur

absent negligence, that the patient’s medical files were here exclusively within

defendant’s control, and that an alleged injury of this kind would not have been

caused by voluntary actions of the plaintiffs. Indeed, we acknowledged in our

previous opinion in this case that no expert evidence was necessary at the pleading

stage to establish that such alleged conduct would have constituted negligence in this

case, and given that the cause of the allegedly unauthorized DNR placement

remained unknown, plaintiffs were able to properly proceed under their res ipsa

loquitur theory. Est. of Wyer, 2022-NCCOA-940 at ¶ 20.

Discovery has occurred in this case, and the record contains Mr. Wyer’s medical

records detailing precisely how the DNR order came about: NP Mason placed it in

Mr. Wyer’s files and recorded its contemporaneous authorization by Mr. Wyer and

Benita. NP Mason, in her deposition, detailed the standard of care guiding these

actions, stating that in North Carolina, a durable and authorized DNR need only be

signed “by a physician, nurse practitioner, or physician’s assistant,” not the patient,

as the electronic order is placed in the patient’s digital records. NP Mason also

testified that a purple DNR band is placed on the patient’s wrist. NP Mason detailed

her own actions on 14 June 2018: she wrote “as the patient or family is talking” and

entered the notes in the medical record “as quickly as I can” using “quotes . . . the

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family had said,” averring that her consultation notes “truthfully and accurately

reflect the conversation and discussion” she had with Mr. Wyer and Benita. She

affirmed that she completed the statutory form for the DNR and entered the

accompanying DNR order based upon the conversation.

Defendant also produced expert testimony in the form of an affidavit from

Randall E. Schisler, Jr. M.D. (“Dr. Schisler”), an internist and palliative care

specialist. The opinions expressed therein constitute substantial evidence (1) that

NP Mason complied with the applicable standard of care, (2) that the MOST form

dated 11 May 2018 was not properly completed and therefore invalid, and (3) that an

authorized and properly completed DNR order supersedes the patient’s earlier

documentation stating his preferences about resuscitative measures, such as the

MOST form.

Therefore, discovery made the cause of the alleged injury known in detail to

plaintiffs, and defendant has also provided substantial evidence that the conduct in

question did not deviate from the standard of care. Accordingly, to proceed on a res

ipsa loquitur theory, plaintiffs were required to show substantial evidence (1) that a

genuine issue of material fact remains as to the DNR’s authorized nature, and (2)

that a genuine issue of material fact remains as to how it came to be placed in his

medical records. Without “more than a scintilla or a permissible inference” sufficient

for a “reasonable mind [to] accept as adequate to support [this] conclusion,” plaintiffs’

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res ipsa loquitor claim is insufficient to survive defendant’s motion for summary

judgment. Thompson, 292 N.C. at 414.

Plaintiffs and defendant agree that on 14 June 2018 “[NP] Mason entered a

DNR/DNI order in Mr. Wyer’s chart.” Therefore, there is no genuine issue of material

fact as to how the DNR was placed in his records. It is unnecessary to determine here

whether a genuine issue of material fact exists as to whether Mr. Wyer authorized

the DNR, as this undisputed evidence forecloses plaintiffs’ negligence claim insofar

as it falls under a res ipsa loquitur theory.

B. Plaintiffs’ Medical Malpractice Claim

Although plaintiffs are unable to survive defendant’s summary judgment

motion on a res ipsa loquitur theory, the parties dispute whether substantial evidence

establishes genuine issues of material fact as to defendant’s liability for negligent

medical malpractice. Therefore, we first ask whether defendant has shown the

absence of any triable issue because plaintiffs “cannot produce evidence to support an

essential element” of this claim. Collingwood, 324 N.C. at 66. As discussed above,

defendant can show that Mr. Wyer authorized NP Mason’s placement of the DNR in

his medical file, and that this was in keeping with the applicable standard of care.

Plaintiffs must be able to show substantial evidence providing a “forecast of evidence

of a genuine issue of material fact” as to all elements of their claim that the

unauthorized placement of the DNR in Mr. Wyer’s medical files proximately caused

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his death. Rorrer v. Cooke, 313 N.C. 338, 350 (1985); N.C.G.S. § 1A-1, Rule 56(e)

(2013).

1. Breach of the Applicable Standard of Care

Plaintiffs argue on appeal that “ample evidence” shows that Mr. Wyer and

Benita “clearly expressed a desire for full medical intervention.” They cite two forms

to this effect, dated 5 April 2018 and 11 May 2018, and the notes recorded by Dr. Sona

Patel during the meeting on 13 June 2018. However, Benita admits that the MOST

form does not include the name or phone number of the physician who apparently

signed it. Plaintiffs’ expert witness, RN Latoya Lowery (“RN Lowery”), who was

deposed “to explain the difference between a DNR and a MOST form,” agreed that

these empty spaces render the form incomplete. RN Lowery also affirmed that the

MOST form was signed by Benita, rather than Mr. Wyer, and that a Healthcare

Power of Attorney takes effect only if the principal is determined to lack sufficient

capacity to make or communicate decisions, which was not the case regarding Mr.

Wyer. RN Lowery acknowledged that this would make the form legally ineffective.

RN Lowery conceded that she was not qualified to opine on the standards of

care applicable to physicians and nurse practitioners, but as a registered nurse, was

familiar with and could testify about the validity and implementation of DNR orders

and MOST forms. Based upon her reading of Mr. Wyer’s medical records, she could

not identify therein any deviations from accepted standards of practice or, based on

her research, experience, and training, identify anything invalid about the DNR

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order. She affirmed that it was properly completed and dated 14 June 2018, and that

NP Mason’s notes stated that both Mr. Wyer and Benita agreed with the plan.

Benita’s Affidavit of Disputed Facts asserts that the “medical record

incorrectly reflects that Henry Wyer and I agreed to have a DNR Order placed in his

record on June 14, 2018.” For supporting evidence, she cites not only to the earlier

forms, but to the record of the 13 June meeting with Dr. Patel. However, of these

cited materials, only Benita’s deposition contains evidence material to the disputed

fact as to whether Mr. Wyer authorized the 14 June DNR, which would have

superseded Mr. Wyer’s earlier directions in either the MOST form or his meeting with

Dr. Patel.

Contrary to Dr. Patel’s notes and Benita’s statement that these notes support

her affidavit, Benita claims in her deposition that, on 13 June 2018, Dr. Patel never

said that Mr. Wyer had a poor long-term prognosis, and that she was unaware that

Dr. Patel had ordered a palliative care meeting the following day. As to the meeting

with NP Mason, Benita claims that palliative care was never discussed.

Nevertheless, Benita overwhelmingly corroborates NP Mason’s notes of their

detailed discussion about Mr. Wyer’s multiple diagnoses and care goals, affirming

that NP Mason accurately recorded multiple statements made by both Wyers. Benita

affirms that NP Mason educated them on hospice services regarding Mr. Wyer’s

“guarded prognosis with comorbidities and poor functional and nutritional status,”

and that they discussed “transition to comfort approach with hospice on discharge

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where focus will be comfort, quality, and dignity . . . [and] symptom management and

preventing rehospitalization” and that “patient and daughter agree with this plan.”

Benita then contradicts her earlier statement that palliative care was never

discussed, claiming that they did discuss the DNR order. Benita denied that she

“agree[d] with DNR, DNI, and allowing him to die a natural death” and that NP

Mason ever stated that Mr. Wyer’s “prognosis was less than six months, if not

significantly less.”

Benita’s Affidavit also states that the DNR was “not properly placed” in Mr.

Wyer’s medical record. She claims that on 18 June, Mr. Wyer did not have a colored

bracelet, and for support, cites her deposition and pictures taken 17 June. The record

contains no such photographs, and Benita’s deposition makes no reference to the

bracelet. But neither can defendant point to any evidence affirming that it placed

the bracelet on Mr. Wyer and did not deviate from the standard of care in this regard.

Here, plaintiffs were required to supplement the pleadings “by affidavits or as

otherwise provided in this rule [setting] forth specific facts showing that there is a

genuine issue for trial.” N.C.G.S. § 1A-1, Rule 56(e) (2013). We are obligated to take

all facts asserted by plaintiffs as true and view them in the light most favorable to

plaintiffs. Dobson, 325 N.C. at 83.

Accordingly, on the question of breach, we take as true and view in the light

most favorable to Benita’s statements that Mr. Wyer did not authorize the DNR and

that defendant did not ensure Mr. Wyer wore a DNR bracelet. Benita has personal

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experience of the meeting with NP Mason and is therefore presumably competent to

give evidence at trial on the narrow question as to what Mr. Wyer communicated on

that date regarding the DNR order.

“[W]here matters of the credibility and weight of the evidence exist, summary

judgment ordinarily should be denied.” Burrow v. Westinghouse Elec. Corp., 88 N.C.

App. 347, 351, disc. review denied, 322 N.C. 111 (1988). Summary judgment should

be denied because the credibility of a witness is to be resolved by the fact finder.

Church v. Mickler, 55 N.C. App. 724, 732 (1982). The amount of weight and

credibility to grant Benita’s testimony are for a jury to consider, not this Court.

Therefore, on the question of breach, a genuine issue of material fact exists.

2. Proximate Causation

“Plaintiffs must be able to make a prima facie case of medical negligence at

trial, which includes articulating proximate cause with specific facts couched in terms

of probabilities.” Cousart v. Charlotte-Mecklenburg Hosp. Auth., 209 N.C. App. 299,

303–304 (2011). Further, “[t]he connection or causation between the negligence and

[the injury] must be probable, not merely a remote possibility.” White v. Hunsinger,

88 N.C. App. 382, 387 (1988). Therefore, the plaintiff must prove it is probable that

a different outcome would have occurred if the proper treatment had been rendered,

not merely that the patient’s chances of survival would have been higher without the

alleged deviation in care. Katy v. Capriola, 226 N.C. App. 470, 479–80 (2013).

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The question of whether CPR would be likely to revive a patient who had

asystole, along with several other serious diagnoses and a poor long-term prognosis,

implicates “complicated medical questions far removed from the ordinary experience

and knowledge of laymen” and is therefore not something a jury can determine

without the assistance of expert testimony. Click v. Pilot Freight Carriers, Inc., 300

N.C. 164, 167 (1980). For this reason, “only an expert can give competent opinion

evidence as to the cause of the injury” in medical malpractice cases. Young v. Hickory

Bus. Furniture, 353 N.C. 227, 230 (2000). Without such evidence, summary judgment

should be granted for the defendant. See Cousart, 209 N.C. App. at 309–10 (summary

judgment for defendant affirmed where “no proximate cause evidence submitted by

[the plaintiff] was sufficiently reliable to be considered competent”).

Through affidavits by Dr. Schisler and James Robinson Harper, Jr. M.D. (“Dr.

Harper”), a cardiologist, defendant provides substantial evidence that the DNR order,

whether authorized or not, did not proximately cause Mr. Wyer’s death. Both doctors

are licensed to practice medicine in North Carolina and board certified in their

respective fields, and their opinions were based upon their review of Mr. Wyer’s

medical records and their familiarity with similar cases. Dr. Harper opined that it

was unclear what caused Mr. Wyer’s heart to stop beating, and that, “to a reasonable

degree of medical certainty,” CPR would not have revived or resuscitated him. Dr.

Schisler concurred “to a reasonable degree of medical certainty, based upon peer

reviewed studies published in the medical literature regarding survival after CPR.”

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As a result of this showing, plaintiffs were required to present evidence in the form

of affidavits to forecast a genuine issue of material fact with respect to causation.

Rorrer, 313 N.C. at 360; N.C.G.S. § 1A-1, Rule 56(e) (2013).

Benita’s Affidavit of Disputed Facts makes no claims as to causation, but even

if it did, it would be insufficient to create a genuine issue of material fact because she

would not be qualified to opine as to the probability that Mr. Wyer would have

survived if resuscitative measures were attempted. Plaintiffs’ sole expert witness,

Ms. Lowery, was deposed on the subject, but Ms. Lowery is not a doctor. Accordingly,

she testified that she had no opinion as to why Mr. Wyer died. She also said she did

not claim “that any improper care led to the events resulting in his need for

resuscitation” or that the nurses “should have ignored the DNR.” Further, she said

she had “no medical basis to state” how Mr. Wyer would have responded to a

resuscitation attempt “in light of his co-morbid health status.” In her deposition,

Benita affirmed that Mr. Wyer had a range of medical issues at the time of his death,

including Paget’s disease, partial paralysis, failure to thrive and malnutrition, a UTI,

and a bowel obstruction.

Instead of providing or pointing us to the required substantial evidence,

plaintiffs argue that defendant’s actions created an “evidentiary gap” that

“preclude[s] any assessment” of “whether CPR might have succeeded because the

hospital unilaterally deprived Mr. Wyer of that opportunity.” Therefore, “Defendant

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Opinion of the Court

should not be permitted to benefit from the evidentiary uncertainty that its own

negligence created.”

But this is not the standard. We have no competence to determine whether

such evidentiary gap exists, because the record proved sufficient for two licensed

physician expert witnesses to evaluate “to a reasonable degree of medical certainty”

the issue of proximate cause. We ask instead whether plaintiffs have shown that it

is more likely than not that Mr. Wyer would have been revived had defendant

administered resuscitative measures rather than complying with the allegedly

unauthorized DNR order.

Here, plaintiffs and their expert can offer no evidence showing that Mr. Wyer’s

death was caused by or resulted from the DNR, instead of Mr. Wyer’s extensive

physical ailments or some other cause. Accordingly, plaintiffs have not shown any

genuine issue of material fact as to causation, an essential element of any negligence

claim. Therefore, plaintiffs failed to forecast evidence sufficient to survive

defendant’s summary judgment motion.

III. Conclusion

Because plaintiffs lack substantial evidence to support their claim that any

negligence by defendant proximately caused Mr. Wyer’s death, defendant is entitled

to judgment as a matter of law and the trial court properly entered summary

judgment in its favor.

AFFIRMED.

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WYER V. ALAMANCE REG. MED. CTR.

Opinion of the Court

Judges ZACHARY and WOOD concur.

Report per Rule 30(e).

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