Mull v. N.C. Dept. of Correction

The Full Commission has reviewed the prior Order of the Deputy Commissioner, plaintiffs Form 44 Application for Review, and plaintiffs claim for damages pursuant to G.S. 143-391 et seq. The appealing party has not shown good ground to reconsider the dismissal. The Full Commission affirms and adopts the Decision and Order of Deputy Commissioner Ford.

***********Plaintiff filed a complaint alleging that personnel with the Department of Correction intentionally interfered with his right to freedom of religion. Damages resulting from the intentional conduct of employees of a State agency are not compensable under the Act. G.S. 143-291; Davis v.North Carolina State Hwy. Commn, 271 N.C. 405, 156 S.E.2d 685 (1967). Plaintiff has failed to allege negligence on the part of an employee or agent of the Department of Correction.

Plaintiff also alleged medical malpractice by members of the Department of Correction medical staff. A plaintiff may not recover in a medical malpractice claim where he cannot show the standard of care owed and that the care received did not meet such standard. G.S. 90-21.12. Expert testimony is necessary to establish this standard of care. Warren v.Canal Industries, Inc., 61 N.C. app. 211, 200 S.E.2d 557 (1983). Plaintiff has failed to produce any medical evidence or expert opinion to establish his claim of malpractice.

Plaintiffs claims are hereby DISMISSED WITH PREJUDICE.

S/______________ RENE C. RIGGSBEE COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/_______________ DIANNE C. SELLERS COMMISSIONER