Preview:

NO. COA09-639 NORTH CAROLINA COURT OF APPEALS Filed: 16 march 2010 THE STATE OF NORTH CAROLINA DEPARTMENT OF HEALTH AND HUMAN SERVICES, DIVISION OF MEDICAL ASSISTANCE, Plaintiff, v. EMILY ARMSTRONG, by and through her guardian ad litem, STEPHANIE GIBBS, SANDRA ARMSTRONG and WILLIAM ARMSTRONG, Individually, Defendants. Appeal by defendants from order entered 20 January 2009 by Judge James W. Morgan in Superior Court, Catawba County. the Court of Appeals 29 October 2009. Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Belinda A. Smith, for plaintiff-appellee. Kirby & Holt, L.L.P., by C. Mark Holt and William B. Bystrynski and Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell, P.A., by Jeffrey T. Mackie, for defendant-appellants. STROUD, Judge. Emily, Sandra, and William Armstrong (collectively "the Heard in Catawba County No. 07 CVS 3414

Amrstrongs") filed a motion to abate this lawsuit filed against them by the State of North Carolina Department of Health and Human Services, Division of Medical Assistance because of a prior pending federal court case arising out of the same subject matter. The

trial court denied the Armstrongs' motion, and they appealed. For the following reasons, we reverse.

-2I. Background

On or about 21 February 2003 the Armstrongs filed a complaint seeking damages for medical malpractice against James Barnes, M.D., Newton Women's Care, P.A., Catawba Memorial Hospital, Inc., and Catawba Valley Medical Center, Inc. (collectively "2003

defendants"). The Armstrongs alleged that Emily was injured during her birth by the 2003 defendants' negligence, causing her serious permanent injuries, including cerebral palsy and severe

disabilities requiring daily skilled nursing care and several forms of therapy. On 14 November 2006, the Armstrongs and the 2003 defendants settled the medical malpractice case. As part of the settlement

order ("2006 Settlement Order"), the trial court ordered [d]efendants James Barnes, M.D. and Newton Women's Care, P.A., and their insurer, are authorized and directed to pay into the Catawba County Clerk of Court's office the sum set out in the Settlement Schedule as the maximum potential amount of the Medicaid lien, as provided by N.C. Gen. Stat.

Download 09-639-3.pdf

South Carolina Law