Henry v. Deen , 61 N.C. App. 189 ( 1983 )

HEDRICK, Judge.

The plaintiff contends the trial court erred in (1) denying his motion to amend the complaint, (2) dismissing the complaint as it related to defendant Niazi, (3) dismissing the claim of civil conspiracy against defendants Deen and Hall and (4) granting defendants’ motion to dismiss and strike from the complaint those paragraphs relating to punitive damages.

We first consider plaintiffs argument that his motion to amend the complaint on 30 November 1981 was improperly denied. Rule 15(a) of the North Carolina Rules of Civil Procedure sets out the conditions for amending pleadings. It states in pertinent part: “Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” In interpreting Fed. R. Civ. P. 15(a), which was the model for the North Carolina rule, the United States Supreme Court wrote in Foman v. Davis, 371 U.S. 178, 182 (1962):

In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. —the leave sought should, as the rules require, be ‘freely given.’ Of course, the grant or denial of an opportunity to amend is within the discretion of the District Court, but outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.

A recent opinion by this court, Ledford v. Ledford, 49 N.C. App. 226, 233-234, 271 S.E. 2d 393, 398-399 (1980), cited the above language from the Foman v. Davis case and held:

In the case sub judice the trial court did not set out a justifying reason for denying plaintiffs motion to amend and no such reason appears in the record on appeal. The United States Supreme Court has held that the trial judge abuses his discretion when he refuses to allow an amendment unless a justifying reason is shown. Foman v. Davis, supra. Nor does the record reveal any attempt on the part of the defendant to show that he would be prejudiced by the amendment. The burden is on the objecting party to show that he would be prejudiced thereby. Vernon v. Crist, 291 N.C. 646, 231 S.E. 2d 591 (1977) (dictum); Public Relations, Inc. v. Enterprises, Inc., 36 N.C. App. 673, 245 S.E. 2d 782 (1978). It must be concluded that the ruling of the trial court in denying the motion to amend is based on a misapprehension of the law, that the circumstances . . . were sufficient as a matter of law to warrant summary judgment for defendant rendering the amendment futile. We conclude that the denial of the motion to amend without a justifying reason and no showing of prejudice to defendant, and apparently based on a misapprehension of the law, was an abuse of discretion and reversible error.

Likewise, in the case before us, the Court below set forth no reason or explanation for denying plaintiffs motion nor can we find any reason from our review of the record. There is no evidence of undue delay, undue prejudice to the defendants, or bad faith on the plaintiffs part. Absent such a showing, amendments should be granted liberally. Therefore, we hold the trial court erred in not allowing plaintiff’s amendment to the complaint.

We next consider plaintiff’s argument that the trial court erred in dismissing the complaint as it related to the culpability of Dr. Niazi for medical malpractice. The original complaint stated that the action was for the wrongful death of Henry as the proximate result of negligent conduct by Deen, Hall and Niazi, but the original complaint gave no further details of Niazi’s alleged negligence. The amended complaint gives sufficient details relating to Niazi’s involvement in the medical diagnosis and treatment of Henry to make out a claim for medical malpractice against Niazi.

North Carolina Rule of Civil Procedure 15(c) states:

A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.

Because of the relation back of amended complaints to the date of the original complaint, the plaintiff’s complaint should not have been dismissed. The amended complaint contains allegations that Niazi attempted to diagnose and treat Henry by telephone and failed to examine the radiologist’s report and X-rays of Henry. These allegations raise a claim of medical malpractice, and the original pleading gave sufficient notice of Niazi’s involvement in the treatment of Henry to trigger the relation back provision of Rule 15. We hold the trial court erred in dismissing the complaint insofar as it relates to Niazi’s potential liability for medical malpractice.

Plaintiff also complains that the trial court erred in dismissing his claim for punitive damages against defendants Deen, Hall and Niazi for negligent medical treatment of Henry. In order to sustain a claim at the pleading stage the complaint must set forth

[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief. . . .

N.C. R. Civ. P. 8(a)(1). In Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161 (1970), our Supreme Court discussed the application of Rule 8(a)(1):

Under the ‘notice theory’ of pleading contemplated by Rule 8(a)(1), detailed fact-pleading is no longer required. A pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and — by using the rules provided for obtaining pretrial discovery — to get any additional information he may need to prepare for trial.

277 N.C. at 104, 176 S.E. 2d at 167.

Any recovery for punitive damages must be based on aggravated, intentional, wanton or grossly negligent conduct, Newton v. Insurance Co., 291 N.C. 105, 229 S.E. 2d 297 (1976), and the pleading must allege sufficient facts to place a defendant on notice of the aggravating factors which would justify the awarding of punitive damages. Shugar v. Guill, 304 N.C. 332, 283 S.E. 2d 507 (1981). Here, the plaintiff alleged in his complaint that Henry’s death was the proximate result of the gross negligence and willful and wanton conduct of the defendants Deen, Hall and Niazi. The complaint sufficiently notified the defendants of the occurrence of Henry’s death to make them cognizant of the claim for medical malpractice; however, there are no allegations of any facts showing any aggravating circumstances which would give rise to punitive damages. All the pleader has done in this regard has been to make conclusory allegations as to willful, wanton conduct and gross negligence. We point out that ordinarily medical malpractice does not have a built-in aggravating factor such as is present in claims for damages arising out of criminal conduct such as fraud, assault or murder. We hold the trial judge did not err in dismissing plaintiffs claim for punitive damages.

Finally, we consider plaintiffs contention that the trial judge erred in dismissing his claim for civil conspiracy against all the defendants. Plaintiff argues he was damaged by the defendants conspiring to falsify evidence and to impede his investigation. Plaintiff contends he should be allowed to assert such a claim concurrent with his action for medical malpractice. We disagree.

As a general rule, a civil action may not be maintained for damages “for false testimony, or for subornation of false testimony, or for conspiracy to give or to procure false testimony.” 16 Am. Jur. 2d, Conspiracy § 63 (1979). The basis for an action for civil conspiracy is not the agreement to conspire, but the damage suffered by the plaintiff. 16 Am. Jur. 2d, Conspiracy § 52 (1979); 3 N.C. Index 3d, Conspiracy § 1 (1976). Therefore, some damage to the plaintiff must predicate an action to recover for civil conspiracy.

Our Supreme Court has addressed this issue in Gillikin v. Bell, 254 N.C. 244, 118 S.E. 2d 609 (1961) and Gillikin v. Springle, 254 N.C. 240, 118 S.E. 2d 611 (1961). In Gillikin v. Bell, the plaintiff sued a commercial photographer for aiding a defendant in a wrongful death action by removing the body of the deceased from a wreck and photographing it in positions damaging to plaintiffs case. In the companion case, Gillikin v. Springle, the driver of the wrecked car was charged with a conspiracy to suborn perjured testimony. In each case the court denied relief and stated the general rule that a civil action in tort will not lie for perjury or subornation of perjury.

Furthermore, in the case before us the plaintiff has shown no damage. He alleges he has spent $3,000 in investigating and collecting evidence of Henry’s alleged wrongful death, but those are expenses naturally incurred in the bringing of any lawsuit. Plaintiff’s problems in gathering proof because of the alleged conspiracy by the defendants in no way make his case unique. He can hardly allege any damage when his right to recover on the tort claim has yet to be adjudicated. We affirm the portion of the trial court’s order dismissing all claims of civil conspiracy as against any of the defendants.

The result is: the trial court erred in not allowing plaintiffs motion to amend the complaint; the order dismissing plaintiffs claim for punitive damages and civil conspiracy as to all defendants will be affirmed; the order dismissing plaintiffs claim against Dr. Niazi for medical malpractice is reversed; and the cause is remanded to the Superior Court for further proceedings in accordance with this opinion.

Affirmed in part; reversed and remanded in part.

Judge JOHNSON concurs. Judge EAGLES concurs in part and dissents in part.