Wheeless v Maria Parham Medical Center, Inc., et al 

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NO. COA14-612 NORTH CAROLINA COURT OF APPEALS Filed: 2 December 2014 CLIFFORD ROBERTS WHEELESS, III, M.D., Plaintiff, v. MARIA PARHAM MEDICAL CENTER, INC., HENDERSON/VANCE HEALTHCARE 1, INC. f/k/a MARIA PARHAM ANESTHESIA AND PHYSIATRY, INC. d/b/a NORTHERN CAROLINA SURGICAL ASSOCIATES, CYNTHIA ROBINSON, M.D., INDIVIDUALLY AND AS AN EMPLOYEE AND/OR AGENT OF HENDERSON/VANCE HEALTHCARE I, INC., AND/OR MARIA PARHAM MEDICAL CENTER, INC., JOSEPH MULCAHY, M.D., INDIVIDUALLY AND AS AN EMPLOYEE AND/OR AGENT OF HENDERSON/VANCE HEALTHCARE I, INC., AND/OR MARIA PARHAM MEDICAL CENTER, INC., ROBERT NOEL, JR., M.D., INDIVIDUALLY AND AS AN EMPLOYEE AND/OR AGENT OF HENDERSON/VANCE HEALTHCARE I, INC., AND/OR MARIA PARHAM MEDICAL CENTER, INC., ROBERT SINGLETARY, INDIVIDUALLY AND/OR CEO AND EMPLOYEE AND/OR AGENT OF HENDERSON/VANCE HEALTHCARE I, INC., AND/OR MARIA PARHAM MEDICAL CENTER, INC., JOHN/JANE/IT DOE 1 THROUGH 5, INDIVIDUALLY AND AS AN EMPLOYEE Vance County No. 13 CVS 335 -2AND/OR AGENT OF HENDERSON/VANCE HEALTHCARE I, INC., AND/OR MARIA PARHAM MEDICAL CENTER, INC., Defendants. Appeal by plaintiff from orders entered 25 November 2013 by Judge Robert H. Hobgood in Vance County Superior Court. Heard in the Court of Appeals 22 October 2014. The Law Office of Colon & Associates, PLLC, by Arlene L. Velasquez-Colon, and Congdon Law, by Jeannette Griffith Congdon, for plaintiff-appellant. Womble Carlyle Sandridge & Rice, LLP, by James M. Powell and Theresa M. Sprain, for defendant-appellees Maria Parham Medical Center, Inc., Henderson/Vance Healthcare I, Inc. f/k/a Maria Parham Anesthesia and Physiatry, Inc. d/b/a Northern Carolina Surgical Associates, Maria Parham Medical Center, Inc., and Robert Singletary. Yates, McLamb & Weyher, L.L.P., by Dan J. McLamb, Samuel G. Thompson, Jr., and John B. Ward, for defendant-appellees Cynthia Robinson, M.D., Joseph Mulcahy, M.D., and Robert Noel, Jr., M.D. BRYANT, Judge. Since defendants are health care professionals rendering professional services, they are not subject to liability for unfair and deceptive trade practices. show the plaintiff’s existence of claim medical for a Where plaintiff cannot physician-patient malpractice must relationship, be dismissed. The doctrine of abatement is applicable where two complaints are -3substantially identical as to parties, subject matter, issues involved, and relief demanded. Plaintiff Clifford Roberts Wheeless, III, M.D., is a boardcertified orthopedic surgeon who held active medical privileges at defendant Maria Parham Medical Center (“MPMC”) from 1998 to 2006. In 2005, MPMC’s medical executive committee conducted a peer review of plaintiff’s clinical skills. MPMC then initiated a new peer review in 2006 regarding allegations that plaintiff had violated MPMC’s disruptive physician policy. Plaintiff denied these allegations and requested a fair hearing concerning the matter. Prior to the fair hearing, plaintiff and MPMC entered into a mediated settlement agreement in July 2006. This agreement required MPMC to change plaintiff’s medical privileges from active actions to against consulting plaintiff, staff, and to to terminate abide all by further a strict confidentiality provision. Despite the mediated settlement agreement, in August 2006, plaintiff alleged that defendant had failed to honor plaintiff’s consulting privileges. Plaintiff again alleged a failure by defendant to acknowledge plaintiff’s consulting privileges in early 2007. -4In 2009, plaintiff Medical Board about Blower” alleging plaintiff. The an was notified anonymous inappropriate anonymous complaint and submitted included by “W. behavior by references to reviews. After an investigation by the North Carolina Medical allegations in the the Carolina that the during North disruptive complaint raised the incidents Board, were by 2005 anonymous and 2006 peer complaint against complaint against plaintiff were dismissed. On 25 August 2011, plaintiff filed a defendants MPMC, MPMC Medical Executive Committee, MPMC Board of Directors, Robert Singletary as CEO of MPMC, Cynthia Robinson, M.D., and Whistle Blower 1 through 10. In the complaint, plaintiff alleged, inter alia, claims for unfair and deceptive trade practices, breach of contract, fraud, civil conspiracy, and intentional and negligent infliction of emotional distress. On 30 April 2012, plaintiff voluntarily dismissed his claims for intentional and negligent infliction of emotional distress. Defendant MPMC filed a motion for summary judgment on 13 June 2012. granted By means of an order entered 10 August, the trial court MPMC’s motion, in part, with respect to plaintiff’s claims for, inter alia, unfair and deceptive trade practices, actual and constructive fraud, breach of contract, invasion of -5privacy, civil conspiracy, and tortious interference with contractual relations and prospective economic advantage. The remaining claims proceeded to discovery.1 On 28 June 2013, plaintiff filed a second complaint against MPMC; Henderson/Vance Healthcare I, Inc. f/k/a Maria Parham Anesthesia and Physiatry, Inc. d/b/a Northern Carolina Surgical Associates; employee and/or and/or MPMC; employee Cynthia Robinson, agent Joseph and/or of of individually Henderson/Vance Mulcahy, agent M.D., M.D., Healthcare individually Henderson/Vance and as I, and Healthcare Inc., as I, an an Inc., and/or MPMC; Robert Noel, Jr., M.D., individually and as an employee and/or and/or MPMC; employee agent Robert and/or of Henderson/Vance Singletary, agent of Healthcare individually Henderson/Vance and as Healthcare I, Inc., CEO I, and Inc., and/or MPMC; and John/Jane/It Doe I through 5, individually and as an employee and/or agent of Henderson/Vance Health I, Inc., and/or MPMC (“defendants”). 1 In the second complaint, plaintiff Plaintiff and MPMC appealed from separate trial court orders regarding discovery in this earlier case. The trial court order compelling MPMC to supplement its responses to discovery was reversed. A separate order granting MPMC’s motion to compel production of plaintiff’s medical records was affirmed. See Wheeless v. Maria Parham Med. Ctr., Inc., No. COA13-1063, 2014 N.C. App. LEXIS 686 (July 1, 2014); Wheeless v. Maria Parham Med. Ctr., Inc., No. COA13-1475, 2014 N.C. App. LEXIS 772 (July 15, 2014). -6alleged claims for unfair malicious prosecution, negligence per compensatory, se and medical against punitive, all deceptive trade malpractice, negligence, defendants. special, and practices, Plaintiff treble and sought damages and attorneys’ fees. On 26 July 2013, defendants MPMC, Henderson/Vance Healthcare I, Inc., and Robert Singletary filed a motion to dismiss pursuant to Rule 12(b)(6). On 26 August, defendants Cynthia Robinson, M.D., Joseph Mulcahy, M.D., and Robert Noel, Jr., M.D., filed a motion to dismiss pursuant to Rule 12(b)(6). By means granted of orders entered defendants’ plaintiff’s claims on motions for unfair 25 November, to dismiss and the with deceptive trade trial court respect practices, medical malpractice, negligence, and negligence per se. trial court denied defendants’ motions plaintiff’s claim for malicious prosecution. with to The respect to Plaintiff appeals. ________________________ As an initial matter, we note that plaintiff’s appeal is interlocutory since plaintiff’s claim from his second complaint for malicious court. prosecution remains pending before the trial -7In general, a party interlocutory order. cannot immediately appeal from an Davis v. Davis, 360 N.C. 518, 524, 631 S.E.2d 114, 119 (2006). “The rationale behind [this rule] is that no final judgment is involved in such a denial and the movant is not deprived of any substantial right that cannot be protected resolves by the a timely appeal controversy on from its a final merits.” judgment Block v. which Cnty. of Person, 141 N.C. App. 273, 276—77, 540 S.E.2d 415, 418 (2000) (citation omitted). However, an interlocutory order may be reviewed on appeal “(1) when there has been a final determination as to one or more of the claims and the trial court certifies that there is no just reason to delay the appeal, [or] (2) if delaying the appeal would prejudice a substantial right.” N.C. App. 176, 178, 611 S.E.2d 474, Milton v. Thompson, 170 476 (2005) (citation omitted). In its orders granting, in part, defendants’ motions to dismiss, the trial court noted that: Plaintiff’s motion to certify the Court’s ruling dismissing Counts I [unfair and deceptive trade practices] and III [medical malpractice and/or negligence] as a Final Judgment under Rule 54(b) is allowed. Dismissal of Counts I and III of the Plaintiff’s complaint is a final judgment and there is no just reason for delay. -8Plaintiff’s claims, for unfair and deceptive trade practices, medical malpractice, negligence, and negligence per se, were dismissed by order of the trial court defendants’ motions to dismiss under Rule 12(b)(6). pursuant to As a motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of a claim, a finding that the claim was legally insufficient amounts to a final judgment with respect to that claim. See Cline v. Teich, 92 N.C. App. 257, 264, 374 S.E.2d 462, 466 (1988) (“[D]ismissal under Rule 12(b)(6) is an adjudication on the merits[.]”). Further, we note that the trial court certified the dismissal of this claim as final under Rule 54(b). See Milton, 170 N.C. App. at 178, 611 S.E.2d at 476. Therefore, the trial court’s order dismissing plaintiff’s claims for unfair and deceptive trade practices, medical malpractice, negligence, and negligence per se is immediately appealable. ________________________ Plaintiff raises two issues on appeal concerning whether the trial court erred (I) by granting defendants’ motions and dismissing practices; dismissing negligence. plaintiff’s and (II) plaintiff’s claim by for unfair granting claims for and deceptive defendants’ medical trade motions malpractice and and/or -9I. Plaintiff contends that the trial court erred by granting defendants’ motions and dismissing plaintiff’s claim for unfair and deceptive trade practices. We disagree. “On appeal of a 12(b)(6) motion to dismiss, this Court conducts 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.” Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 429 (2007) (citation and quotation omitted). Plaintiff argues that the trial court erred by granting defendants’ motions to dismiss plaintiff’s claim for unfair and deceptive trade practices. Specifically, plaintiff contends that the trial court erred because the “learned profession” exception under N.C. Gen. Stat. § 75-1.1 does not apply to defendants in this matter. North Carolina General Statutes, Chapter 75-1.1, that: (a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful. (b) For purposes of this section, “commerce” includes all business activities, however denominated, but does not include holds -10professional services rendered by a member of a learned profession. N.C.G.S. § 75-1.1(a), (b) (2013). To determine whether the “learned profession” exclusion applies, a two-part inquiry must be conducted: “[f]irst, the person or entity performing the alleged act must be a member of a learned profession. Second, the conduct in question must be a rendering of professional services.” Reid v. Ayers, 138 N.C. App. 261, 266, 531 S.E.2d 231, 235 (2000) (citations omitted). Plaintiff professionals, concedes “are that members defendants, of [a] as learned medical profession.” Plaintiff argues, however, that the learned profession exception under N.C.G.S. § 75-1.1 does not apply here because, by “illegally access[ing], shar[ing], and us[ing] Plaintiff’s peer review materials and patients’ confidential medical records out of malice and for financial gain for illegal improper purpose[,]” defendants have not rendered professional services. The improper conduct by defendants of which plaintiff complains concerns the anonymous complaint sent by “W. Blower” to the North Carolina Medical Board. This anonymous complaint contained references to matters addressed by the 2005 and 2006 peer reviews, matters which plaintiff alleges were to be kept confidential and private as a result of the 2006 mediated -11settlement agreement between plaintiff and MPMC. Despite this complaint having been sent anonymously to the North Carolina Medical Board, plaintiff asserts that all defendants, including “John/Jane/It Doe 1 Through 5,” were potentially involved with this anonymous complaint because only these parties had access to the materials covered by the 2006 mediated settlement agreement. As such, the conduct of which plaintiff complains involves correspondence professionals sent (defendants) by to one or another more medical of medical group professionals (the North Carolina Medical Board) concerning the conduct of yet another medical professional (plaintiff) committed in a professional setting. It is well-settled by our Courts that “a matter affecting the professional profession . . services . rendered therefore N.C.G.S. § 75-1.1(b).” falls by members within the of a learned exception in Burgess v. Busby, 142 N.C. App. 393, 407, 544 S.E.2d 4, 11—12 (2001) (citations omitted); see also Gaunt v. Pittaway, 139 N.C. App. 778, 784, 534 S.E.2d 660, 664 (2000) (“[M]edical professionals are expressly excluded from the scope of N.C.G.S. § 75-1.1(a) and thus it clearly does not follow that a statement by a medical professional, criminal or otherwise, is governed by this particular statute.”). Indeed, -12[o]ur Court has made clear that unfair and deceptive acts committed by medical professionals are not included within the prohibition of N.C.G.S. § 75-1.1(a). This exception for medical professionals has been broadly interpreted by this Court, see Phillips v. A Triangle Women's Health Clinic, 155 N.C. App. 372, 377-79, 573 S.E.2d 600, 604-05 (2002); Burgess, 142 N.C. App. 393, 544 S.E.2d 4 (2001); Gaunt, 139 N.C. App. 778, 534 S.E.2d 660 (2000); Abram v. Charter Medical Corp., 100 N.C. App. 718, 722-23, 398 S.E.2d 331, 334 (1990); Cameron v. New Hanover Memorial Hospital, Inc., 58 N.C. App. 414, 447, 293 S.E.2d 901, 921 (1982), and includes hospitals under the definition of “medical professionals.” Shelton v. Duke Univ. Health Sys., Inc., 179 N.C. App. 120, 126, 633 S.E.2d 113, 117 (2006) (citation omitted) (affirming the trial court’s dismissal of the plaintiff’s claim for unfair and deceptive trade practices against the defendant hospital on grounds that such a claim cannot be brought against medical professionals pursuant to N.C.G.S. § 75-1.1). In this case, defendants’ alleged conduct in making a complaint to the Medical Board is integral to their role in ensuring the provision of adequate medical care. Accordingly, without merit. II. plaintiff’s argument is -13Next, plaintiff argues granting defendants’ motions that and the trial court erred by dismissing plaintiff’s claim for medical malpractice and/or negligence. We disagree. The standard of review of an order granting a 12(b)(6) motion is whether the complaint states a claim for which relief can be granted under some legal theory when the complaint is liberally construed and all the allegations included therein are taken as true. On a motion to dismiss, the complaint's material factual allegations are taken as true. Dismissal is proper when one of the following three conditions is satisfied: (1) the complaint on its face reveals that no law supports the plaintiff's claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff's claim. Burgin, 181 N.C. App. at 512, 640 S.E.2d at 428—29 (citations and quotation omitted). Plaintiff contends that the trial court erred by granting defendants’ motions to dismiss plaintiff’s third claim for medical malpractice, negligence, and negligence per se. In his second complaint, plaintiff also raised a claim for relief based on res ipsa loquitur; plaintiff further orally asserted a claim for relief based on corporate negligence before the trial court. A. Medical Malpractice -14In his complaint, plaintiff alleged that defendants engaged in medical malpractice pursuant to N.C. Gen. Stat. § 90-21.11. North Carolina General Statutes, Chapter 90-21.11, holds that a medical malpractice claim may be brought in the following instances: a. A civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider. b. A civil action against a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes for damages for personal injury or death, when the civil action (i) alleges a breach of administrative or corporate duties to the patient, including, but not limited to, allegations of negligent credentialing or negligent monitoring and supervision and (ii) arises from the same facts or circumstances as a claim under subsubdivision a. of this subdivision. N.C. Gen. Stat. § 90-21.11(2) (2013). Plaintiff contends that his claim for medical malpractice has satisfied the pleading requirements of N.C.G.S. § 90-21.11 because defendants are medical providers and a medical provider— patient relationship is not required to assert such a claim. Plaintiff cites Jones v. Asheville Radiological Grp., P.A., 129 N.C. App. 449, 500 S.E.2d 740 (1998), rev’d in part on other -15grounds by 351 N.C. 348, 524 S.E.2d 804 (2000), in support of his argument. In Jones, the plaintiff sued her defendant physician and medical provider, alleging that the defendants had disclosed her medical records without her authorization. S.E.2d at 742. Id. at 453, 500 The trial court granted the defendants’ motion to dismiss on the grounds that the unauthorized disclosure of medical records malpractice. disagreed, did Id. stating not at give 455, that rise 500 “in to a claim S.E.2d at 744. the context of a for medical This Court health care provider's unauthorized disclosure of a patient's confidences, claims of medical malpractice, invasion of privacy, breach of implied contract and breach of fiduciary duty/confidentiality should all be treated as claims for medical malpractice.” Id. at 456, 500 S.E.2d at 744 (citation omitted). The trial court’s dismissal of the plaintiff’s claim was then affirmed, however, on the grounds that the plaintiff had failed to comply with the statute of limitations in filing her complaint. Id. at 456—57, 500 S.E.2d at 744—45. Jones is not applicable to the instant case since, in Jones, the plaintiff was a patient of the defendants and, thus, a clear physician/medical provider to patient relationship -16existed between the plaintiff and the defendants. Here, plaintiff was not a patient of defendants, but rather a fellow medical professional and associate of MPMC. “[I]t is well settled that the relationship of health-care provider to patient must be established to maintain an actionable claim for medical malpractice.” Massengill v. Duke Univ. Med. Ctr., 133 N.C. App. 336, 338, 515 S.E.2d 70, 72 (1999) (citing Easter v. Lexington Mem’l Hosp., Inc., 303 N.C. 303, 305—06, 278 S.E.2d 253, 255 (1981) (“It is well settled that the relationship of physician to patient must be established as a prerequisite to an actionable claim for medical malpractice.”) (citation omitted)). Therefore, the trial court did not err by granting defendants’ motions to dismiss with respect to plaintiff’s claim for medical malpractice. B. Negligence, Negligence per se, Corporate Negligence, Res Ipsa Loquitur Plaintiff negligence per also se, brought and res written claims for ipsa loquitur in negligence, his second complaint, and orally attempted to assert a claim of corporate negligence before the trial court. Plaintiff alleges that these negligence claims arose from defendants’ failure to “exercise reasonable care and due diligence in safeguarding the medical -17records generated by Plaintiff, and Plaintiff’s peer review materials stored under the exclusive care, custody and control of MPMC[.]” In its order dismissing these claims, the trial court noted that “The motion to dismiss Plaintiff’s claim for medical malpractice and/or negligence (Count III) is allowed. The Court’s decision to dismiss Count III is not based on Rule 9(j) of the Rules of Civil Procedure.” In his second complaint, plaintiff alleged that defendants are medical providers and staff for whom plaintiff generated confidential that, patient because medical defendants plaintiff, defendants safeguard[] and engaged owed protect[]” records. Plaintiff in plaintiff records two a also peer duty relating reviews to to alleged of “properly these reviews which were “stored under the exclusive care, custody and control of MPMC[.]” defendants diligence Plaintiff further alleged that, “fail[ing] in to safeguarding exercise [the] in addition to reasonable medical care records and due generated by Plaintiff, and Plaintiff’s peer review materials,” defendants are liable defendants’ confidential under the “failure materials doctrine to is of res safeguard evidenced ispa loquitur Plaintiff’s by the because private fact that and said Defendant[s] had exclusive possession, custody and control of -18said materials, which would not have been disclosed, but for [defendants’] negligence.” As a result, plaintiff has alleged that he is entitled to recover damages from defendants based upon his claims for negligence against defendants, including actions for negligence, negligence per se, corporate negligence, and res ipsa loquitur. However, these claims have been abated. Under the law of this state, where a prior action is pending between the same parties for the same subject matter in a court within the state having like jurisdiction, the prior action serves to abate the subsequent action. The prior pending action doctrine involves essentially the same questions as the outmoded plea of abatement, and is, obviously enough, intended to prevent the maintenance of a subsequent action [that] is wholly unnecessary and, for that reason, furthers the interest of judicial economy. The ordinary test for determining whether or not the parties and causes are the same for the purpose of abatement by reason of the pendency of the prior action is this: Do the two actions present a substantial identity as to parties, subject matter, issues involved, and relief demanded? Jessee v. Jessee, 212 N.C. App. 426, 439, 713 S.E.2d 28, 37 (2011) (citations and quotations omitted). A review of plaintiff’s two lawsuits indicates that there exists significant overlap between the parties, subject matter, issues, and relief demanded. Specifically, each lawsuit concerns -19a core group of defendants (MPMC, Cynthia Robinson, Robert Singletary, and Whistle Blower 1 Through 10/ Doe 1 Through 5), and identical subject matter and issues (that defendants’ failure to safeguard medical records generated by plaintiff and peer review records concerning plaintiff has harmed plaintiff). As plaintiff’s two lawsuits “present a substantial identity as to parties, demanded[,]” plaintiff’s subject matter, plaintiff’s first issues second complaint. involved, complaint See id. has and been Accordingly, relief abated the trial court did not err in granting defendants’ motions to dismiss. Affirmed. Judges ELMORE and ERVIN concur. by

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