Kohn v. Firsthealth of the Carolinas, Inc
Annotate this Case
Download PDF
NO. COA13-168 NORTH CAROLINA COURT OF APPEALS Filed: 20 August 2013 HARVEY D. KOHN, M.D., EVE AVERY, and JILL KRIEGER, Plaintiffs v. Moore County No. 12 CVS 82 FIRSTHEALTH OF THE CAROLINAS, INC., d/b/a MOORE REGIONAL HOSPITAL, Defendant Appeal by plaintiffs from order entered 27 July 2012 by Judge Anderson D. Cromer in Moore County Superior Court. Heard in the Court of Appeals 6 June 2013. Smith, James, Rowlett & Cohen, LLP, by Norman B. Smith, for plaintiff-appellants. Smith, Moore, Leatherwood, LLP, by William R. Forstner, Samuel O. Southern, and Matthew Nis Leerberg, for defendant-appellee. CALABRIA, Judge. Harvey D. Kohn, M.D. ( Dr. Kohn ), Eve Avery ( Avery ), and Jill Krieger ( Krieger )(collectively plaintiffs ) appeal the trial court s order dismissing, inter alia, their claim that Firsthealth of the Carolinas, Inc., d/b/a Moore Regional Hospital ( defendant ) violated the public utility doctrine by -2denying Dr. Kohn staff privileges. We affirm. I. Background According to the allegations in plaintiffs complaint, Dr. Kohn is a medical doctor gynecology ( OB/GYN ). degree in Canada at specializing in obstetrics and Dr. Kohn earned his medical doctorate the University of Toronto Faculty of Medicine and completed his internship and residency in OB/GYN at McMaster University in Hamilton, Ontario. Defendant is the only secondary care hospital with full surgical specialty facilities in Moore County, North Carolina. Plaintiffs allege that many of Dr. Kohn s patients reside in Moore County and other nearby communities, and that defendant s hospital serves these patients. Avery and Krieger, established patients of Dr. Kohn, have previously received services at defendant s hospital. Plaintiffs allege that in the event either Avery or Krieger were to need OB/GYN surgery or other OB/GYN procedures that must be performed in a hospital, they prefer to be treated by Dr. Kohn and hospitalized at defendant s hospital. In 1999, Dr. Kohn applied for staff hospital privileges, but defendant did not accept his pre-application because he lacked certification by the American Board of Obstetrics and -3Gynecology ( ABOG ). Dr. Kohn later received certification as an obstetrician and gynecologist by the ABOG in 2006. In November 2010, Dr. Kohn resubmitted his hospital staff privileges application to defendant. His application was again denied. This time, the denial resulted from a provision in defendant s bylaws requiring [s]uccessful completion of a residency program in the planned practice specialty, approved by the Accreditation Council for Graduate Medical Education . . . . Dr. Kohn responded by providing documentation to defendant that his residency Accreditation recognition program Council. by the had been Defendant Council was recognized maintained insufficient by that to meet the mere its requirements for hospital staff privileges. On 19 January 2012, plaintiffs filed a complaint against defendant in Moore County Superior Court, alleging multiple causes of action, including a claim for violation of the public utility doctrine. Defendant filed an answer and a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) on 19 March 2012. On 27 July 2012, the trial court granted defendant s motion to dismiss, inter alia, Dr. Kohn s claim for violation of the public utility doctrine for failure to state a -4claim upon which relief could be granted and all claims by Avery and Krieger due to lack of standing. After the trial court s 27 July 2012 order, Dr. Kohn voluntarily dismissed his remaining claims without prejudice. Plaintiffs appeal. II. Public Utility Doctrine Plaintiffs argue that the trial court erred by granting defendant s motion to dismiss plaintiffs claim for violation of the public utility doctrine on grounds that it failed to state a claim upon which relief could be granted. We disagree. The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. In ruling on the motion, the allegations of the complaint must be viewed as admitted, and on that basis the court must determine as a matter of law whether the allegations state a claim for which relief may be granted. Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979) (citations omitted). This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court s ruling on the motion to dismiss was correct. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff d per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003). -5In the instant case, plaintiffs allegations in support of their claim include: 30. Defendant controls the provision of hospital services to the residents of Moore County, North Carolina, and beyond. 31. There are alternatives by which County can obtain including a number gynecological surgeries no other feasible residents of Moore hospital treatment, of obstetrical and and procedures. 32. Because of defendant s conduct described herein, it has unreasonably and unlawfully denied the public utility it controls to plaintiff Harvey D. Kohn, and to the plaintiffs Eve Avery and Jill Krieger and other patients of plaintiff Harvey D. Kohn. Thus, plaintiffs assert that (1) defendant is a public utility and (2) violated based the on its public status utility privileges to Dr. Kohn. as a public doctrine utility, when it defendant denied staff Our Supreme Court has recognized that [a] public utility, whether publicly or privately owned, is under a legal obligation to serve the members of the public to whom its use extends, impartially and without unjust discrimination * * * A public utility must serve alike all who are similarly circumstanced with reference to its system, and favor cannot be extended to one which is not offered to another, nor can a privilege given one be refused to another. Utilities Commission v. Water Co., 248 N.C. 27, 30, 102 S.E.2d 377, 379 (1958)(internal quotations and citations omitted). -6However, although responsibilities General of Statutes classifying plaintiffs a or defendant public the as utility, decisions a discuss public the nothing of our utility in service either Courts subject our support to this doctrine. Pursuant to N.C. Gen. Stat. § 62-3(23), a public utility is defined as a person . . . owning or operating in this State equipment or facilities for . . . electricity, piped gas, steam, or any other like agency . . . water . . . transport[ation] of persons or household goods . . . transport[ation] of gas, crude oil or other fluid substance . . . or communications . . . . N.C. Gen. Stat. § 62-3(23) (2011). clearly does not meet the As a hospital, defendant requirements of this statutory definition. Nevertheless, plaintiffs contend that an entity can still be considered a public utility even if it does not meet the requirements of N.C. Gen. Stat. § 62-3(23). Plaintiffs rely on State ex rel. Utilities Commission v. Edmisten to support their argument regarding whether a qualifies as a public utility. specific enterprise generally The Edmisten Court stated that [o]ne test to determine whether a plant or system is a public utility is whether the public may enjoy it by right or by -7permission only. 40 N.C. App. 109, 116, 252 S.E.2d 516, 520 (1979), aff d in part and rev d in part on other grounds, 299 N.C. 432, 263 S.E.2d 583 (1980). Plaintiffs contend that, pursuant to this test, the determination of whether an entity qualifies as a public utility depends upon whether the enterprise holds itself out as engaged in supplying its services to the general public, as particular individuals. distinguished from serving only Plaintiffs assert that, under their definition, a publicly owned secondary care hospital serving a significant utility. geographical area, by necessity is a public Plaintiffs are mistaken because Edmisten does not support plaintiffs theory. In that Edmisten, owned and the Court operated determined two electric whether a generating corporation facilities qualified as a public utility under N.C. Gen. Stat. § 62-3 (23). Id. at 113-16, 252 S.E.2d at 519-21. The Court specifically used the definition cited by plaintiffs to decide whether the corporation met the statutes. Id. Edmisten suggests requirements Contrary that to the of plaintiffs Court the public argument, judicially utilities nothing expanded in the definition of a public utility beyond N.C. Gen. Stat. § 62-3 (23) to include any entity which supplies its services to the -8general public. Ultimately, neither the Edmisten Court nor any other North Carolina Court has ever described any entity as a public utility other than the entities that are included in the definition in N.C. Gen. Stat. § 62-3(23). In the absence of any North Carolina statute or caselaw suggesting that a hospital should be considered a public utility, we decline to judicially impose such a designation on defendant. Any expansion of the term public utility to include entities such as defendant is the prerogative of the General Assembly, not of this Court. Since defendant cannot be considered a public utility under current law, it necessarily could not violate any requirements imposed on public utilities. Accordingly, the trial court properly granted defendant s motion to dismiss plaintiffs claim for violation of the public utility doctrine for failure to state a claim upon which relief may be granted. This argument is overruled. III. Plaintiffs also argue Standing that the trial court erred by dismissing the claims of Avery and Krieger on the grounds that they lacked standing. However, after our disposition of plaintiffs claim for violation of the public utility doctrine, all of the claims in plaintiffs complaint have been dismissed. -9Consequently, a determination of Avery and Krieger s standing is unnecessary. Assuming, arguendo, that Avery and Krieger had standing to bring their original complaint, there are no longer any remaining claims for them to pursue. As a result, we decline to address this argument. IV. Conclusion Plaintiffs have provided no authority that would allow this Court to judicially designate defendant as a public utility. Therefore, defendant did not violate the public utility doctrine by denying Dr. Kohn staff privileges. granted defendant s violation of the motion public to The trial court properly dismiss utility plaintiffs doctrine pursuant claim for to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The trial court s order is affirmed. Affirmed. Judges ERVIN and DAVIS concur.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
