Wright v. Atl. Orthopedics, P.A
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 A p p e l l a t e P r o c e d u r e . NO. COA14-136 NORTH CAROLINA COURT OF APPEALS Filed: 5 August 2014 WANDA WRIGHT AND JAMES WRIGHT, Plaintiffs, v. New Hanover County No. 11 CVS 4080 ATLANTIC ORTHOPEDICS, P.A., AND NEW HANOVER REGIONAL MEDICAL CENTER, Defendants. Appeal by plaintiffs from order entered 22 August 2013 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 4 June 2014. The Mitchell Law Group, by Ronnie M. Mitchell, and The Law Offices of William S. Britt, by William S. Britt, for plaintiff-appellants. Walker, Allen, Grice, Ammons & Foy, L.L.P., by Jerry A. Allen, Jr., and Louis (Trey) F. Foy, III, for defendantappellees. BRYANT, Judge. -2Where discovery reveals that a claim for medical negligence is not supported by the facts, a dismissal of the claim pursuant to Rule 9(j) is appropriate. On 16 April 2009, plaintiff Wanda Wright underwent a total knee arthroplasty performed by in Dr. her Walter left W. knee. Frueh, The an arthroplasty orthopedic was surgeon at Atlantic Orthopedics, and the operation was conducted at New Hanover Regional Medical Center. Although the surgery was successful, a six-inch skin laceration was noted above Wright s left ankle when her surgical drapes were removed. subsequently referred laceration. On 21 to a April, plastic Wright surgeon was Wright was for discharged the skin from the hospital with instructions to continue rehabilitation and skin care services following her knee surgery and laceration. On 28 April, the plastic surgeon removed the sutures from Wright s skin laceration. On 30 September 2011, Wright and her husband, plaintiff James Wright, filed a complaint against defendants Dr. Frueh, Atlantic Orthopedics, and New Hanover Regional Medical Center. The complaint Wright: alleged negligence laceration; claims the against against following Dr. Frueh Atlantic claims for brought causing Orthopedics by Mrs. the skin based on -3respondeat superior for the negligence of its physician, Dr. Frueh; and claims against New Hanover Regional Medical Center based on respondeat superior for the negligence of its employees and staff in causing the skin laceration. A claim for loss of consortium was brought by Mr. Wright. On 26 July 2011, Atlantic Orthopedics filed a motion for summary judgment pursuant to Rule 56, and a motion to dismiss pursuant to, inter alia, Rule 9(j). Thereafter, plaintiffs took a voluntary dismissal without prejudice as to defendants Dr. Frueh and New Hanover Regional Medical Center. Plaintiffs also made a motion to amend the pleadings to conform to the evidence. On 22 August, the trial court granted Atlantic Orthopedics motion to dismiss plaintiffs complaint for failure to comply with the requirements of Rule 9(j); no formal ruling was made as to plaintiffs motion to amend the pleadings. Plaintiffs appeal. _________________________________ In their sole issue on appeal, plaintiffs contend the trial court erred in dismissing their complaint pursuant to Rule 9(j). We disagree. Rule 9(j) unambiguously requires a trial court to dismiss a complaint if the complaint's allegations do not facially comply with the rule's heightened pleading -4requirements. Additionally, this Court has determined that even when a complaint facially complies with Rule 9(j) by including a statement pursuant to Rule 9(j), if discovery subsequently establishes that the statement is not supported by the facts, then dismissal is likewise appropriate. In considering whether a plaintiff's Rule 9(j) statement is supported by the facts, a court must consider the facts relevant to Rule 9(j) and apply the law to them. In such a case, this Court does not inquire as to whether there was any question of material fact, nor do we view the evidence in the light most favorable to the plaintiff. Rather, our review of Rule 9(j) compliance is de novo, because such compliance clearly presents a question of law . . . . Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 255 56, 677 quotations omitted). S.E.2d 465, 477 (2009) (citations and Rule 9(j) does not provide a procedural mechanism by which a defendant may file a motion to dismiss a plaintiff's complaint. Id. at 255, 677 S.E.2d at 477. However, [t]he Rules of Civil Procedure provide other methods by which a defendant may file a motion alleging a violation of Rule 9(j). Id.; see also Thigpen v. Ngo, 355 N.C. 198, 200, 558 S.E.2d 162, 164 (2002) (the trial court granted defendants' "motions to dismiss pursuant to Rules 9(j) and 12(b)(6)"); Trapp v. Maccioli, 129 N.C. App. 237, 239, 497 S.E.2d 708, 709 (the defendant filed a motion to dismiss "pursuant to Rule 9(j)"). -5Plaintiffs Atlantic contend Orthopedics complaint met Plaintiffs the gave the the motion pleading trial to court dismiss erred because requirements following statement of in granting plaintiffs Rule of Rule certification: Pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure and prior to the filing of this Complaint, the care and treatment of Plaintiff Wanda Wright by the Defendants has been reviewed by a person who is expected to qualify under Rule 702 of the North Carolina Rules of Civil Procedure, and who is willing to testify that the Defendants care and treatment of the Plaintiff Wanda Wright breached the appropriate standards of care, that they failed to use their best medical judgment and/or failed to use reasonable care and diligence applying their knowledge, training and skill to Plaintiff s care, proximately resulting in injury and damage to the Plaintiff, Wanda Wright. Rule 9(j) of our Rules of Civil Procedure states: Medical malpractice. Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless: (1) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an 9(j). 9(j) -6expert witness under Rule 702 of the Rules of Evidence and who is willing testify that the medical care did not comply with the applicable standard of care; to (2) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or (3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur. N.C. Gen. Stat. § 1A-1, Rule 9(j)(1 3) (2013). We agree complaint with facially plaintiffs meets the that the statement requirements of in Rule their 9(j), as plaintiffs have pleaded the elements required by Rule 9(j)(a). However, a complaint may facially meet the requirements of Rule 9(j), yet may later fail Rule 9(j) based on discovery. In dismiss its order pursuant to granting Rule Atlantic 9(j), the Orthopedics trial court motion noted to that plaintiffs failed to comply with the requirements of Rule 9(j), and that the motion should be allowed based on the deposition -7testimony of the plaintiffs expert witness, Dr. Staley Jackson[.] Dr. Jackson, plaintiffs expert witness, testified during his deposition that, in his opinion, Dr. Frueh had not violated any standards of care or was involved in any negligent acts. did not feel injury. based that he had any involvement in I [plaintiff s] Upon further questioning, Dr. Jackson stated that, on his plaintiff s negligent review medical in of defendants records, causing the deposition only plaintiff s person skin testimony who was laceration and likely was the physician s assistant who removed plaintiff s surgical drapes. We agree with the trial court that plaintiffs have failed to meet the requirements of Rule 9(j), as the deposition testimony of plaintiffs expert witness, Dr. Jackson, clearly indicates that he did not feel the evidence demonstrated negligence on the part of Dr. Frueh or Atlantic Orthopedics. Instead, Dr. possible negligence assistant. Jackson s deposition only against supported Dr. a Frueh s finding of physician s Thus, as the deposition testimony of plaintiffs expert witness demonstrates that plaintiffs complaint was not supported by the facts, a dismissal pursuant to Rule 9(j) was appropriate. See Robinson v. Duke Univ. Health Sys., ___ N.C. -8App. ___, ___, 747 S.E.2d 321, 328 (2013) complaint facially complies with Rule statement pursuant to 9(j), if Rule 9(j) ( [E]ven discovery a including by when a subsequently establishes that the statement is not supported by the facts, then dismissal is likewise appropriate. (citing Barringer, 197 N.C. App. at 255, 677 S.E.2d at 477)). Plaintiffs also argue that because an affidavit by Dr. Jackson was offered alongside the motion to amend the pleadings, the trial court erred in dismissing the complaint under Rule 9(j). "[O]ur standard of review for motions to amend pleadings requires a showing that the trial court abused its discretion." Delta Envtl. Consultants of N.C., Inc. v. Wysong & Miles Co., 132 N.C. App. 160, 165, 510 S.E.2d 690, 694 (1999) (citation omitted). "A trial court abuses its discretion when its decision is manifestly unsupported by reason or so arbitrary that it could not have been the result of a reasoned decision." Ehrenhaus v. Baker, 216 N.C. App. 59, 71, 717 S.E.2d 9, 18 (2011) (citations and quotation omitted), appeal dismissed and disc. Proper review denied, reasons for 366 N.C. denying a 420, motion 735 to S.E.2d amend 332 (2012). include undue delay, unfair prejudice, bad faith, futility of amendment, and -9repeated failure of the moving party to cure defects by other amendments. Here, Delta, 132 N.C. App. at 166, 510 S.E.2d at 694. the record does not plaintiffs motion to amend. include a clear ruling on Instead, the motion in the record does not bear a file stamp, although the affidavit accompanying the motion does bear a filing stamp of 19 August 2013. Nevertheless, based on the trial court s dismissal of the case, it seems clear that plaintiff s motion to amend was not allowed. Plaintiffs argument on appeal asserts the viability of a claim based on an affidavit offered with a motion to amend. However, since plaintiffs do not argue on appeal the denial of the motion to amend, plaintiffs argument is deemed abandoned. See N.C. R. App. P 28(a) (2013) ("The scope of review on appeal is limited to issues presented so and abandoned."). presented in discussed the in Therefore, several a we briefs. party s do not brief consider Issues are not deemed plaintiff s arguments regarding the contents of Dr. Jackson s affidavit, and make no determination as to whether the contents of the affidavit would suggest a medical negligence claim against Dr. Frueh s physician s assistant based on any legal theory. Plaintiffs granting further Atlantic contend Orthopedics the trial motion to court dismiss erred in because -10plaintiffs complaint is rooted in common-law negligence and res ipsa loquitor and, therefore, the requirements of Rule 9(j) are not applicable. claim may alleges In pleading a claim for medical negligence, a satisfy facts common-law the requirements establishing doctrine of of Rule negligence [negligence or] 9 under res if the the ipsa claim existing loquitur. N.C.G.S. § 1A-1, Rule 9(j)(3). Here, plaintiffs took a voluntary dismissal as to defendants Dr. Frueh and New Hanover Regional Medical Center. In the complaint against Atlantic Orthopedics, plaintiffs alleged only that: All the acts and/or omissions of each of the individual Defendant physicians were done within the course and scope of their agency and employment for these corporate Defendants and these corporate Defendants are negligent under the doctrine plaintiffs is of respondeat narrowly superior. tailored, as This it allegation strictly by limits plaintiffs claim of negligence against Atlantic Orthopedics to that of respondeat superior for the acts of the individual Defendant physicians. The evidence before the trial court indicated that only one defendant physician, Dr. Frueh, performed any medical procedures on plaintiff. Indeed, plaintiffs complaint acknowledges that -11Dr. Frueh was the sole defendant physician, as Dr. Frueh is the only physician listed in the complaint. Thus, plaintiffs claim against Atlantic Orthopedics cannot be deemed to include a claim for common-law negligence, as it is narrowly couched to address only a claim of respondeat superior for the acts of Atlantic Orthopedics physician, Dr. Frueh. Plaintiffs argument that the complaint raises a claim for res ipsa loquitor is likewise without merit. A claim of res ipsa loquitor in a medical malpractice claim is appropriate only where the plaintiff s claim allows an ordinary person to determine from the facts presented that the plaintiff s injury was one that does not happen in the ordinary course of things, where proper care is exercised. Robinson, ___ N.C. App. at ___, 747 S.E.2d at 330 (citations omitted). Here, plaintiffs complaint fails to raise even a hint of res ipsa loquitor against Atlantic Orthopedics for, as discussed previously, plaintiffs complaint is strictly limited to alleging only a claim of respondeat superior against Atlantic Orthopedics physician. We further note that because plaintiffs took a voluntary dismissal as to Dr. Frueh, this has effectively dismissed plaintiffs claim against Atlantic Orthopedics in its entirety, as the claim based on respondeat superior is -12specifically tied to the negligent acts of Atlantic Orthopedics physician, Dr. Frueh. Accordingly, the ruling of the trial court Atlantic Orthopedics motion to dismiss is affirmed. Affirmed. Judges CALABRIA and GEER concur. Report per Rule 30(e). granting
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