Wheeless v. Maria Parham Medical Center, Inc. ( 2014 )

NO. COA14-612
NORTH CAROLINA COURT OF APPEALS
Filed: 2 December 2014
CLIFFORD ROBERTS WHEELESS, III,
M.D.,
Plaintiff,
v. Vance County
No. 13 CVS 335
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
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AND/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. Where plaintiff cannot
show the existence of a physician-patient relationship,
plaintiff’s claim for medical malpractice must be dismissed.
The doctrine of abatement is applicable where two complaints are
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substantially identical as to parties, subject matter, issues
involved, and relief demanded.
Plaintiff Clifford Roberts Wheeless, III, M.D., is a board-
certified 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 to consulting staff, to terminate all further
actions against plaintiff, and to abide by 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.
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In 2009, plaintiff was notified by the North Carolina
Medical Board about an anonymous complaint submitted by “W.
Blower” alleging inappropriate and disruptive behavior by
plaintiff. The anonymous complaint included references to
incidents that were raised during the 2005 and 2006 peer
reviews. After an investigation by the North Carolina Medical
Board, the allegations in the anonymous complaint against
plaintiff were dismissed.
On 25 August 2011, plaintiff filed a complaint against
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. By means of an order entered 10 August, the trial court
granted 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
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privacy, 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; Cynthia Robinson, M.D., individually and as an
employee and/or agent of Henderson/Vance Healthcare I, Inc.,
and/or MPMC; Joseph Mulcahy, M.D., individually and as an
employee and/or agent of Henderson/Vance Healthcare I, Inc.,
and/or MPMC; Robert Noel, Jr., M.D., individually and as an
employee and/or agent of Henderson/Vance Healthcare I, Inc.,
and/or MPMC; Robert Singletary, individually and as CEO and
employee and/or agent of Henderson/Vance Healthcare I, 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”). In the second complaint, plaintiff
1
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).
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alleged claims for unfair and deceptive trade practices,
malicious prosecution, medical malpractice, negligence, and
negligence per se against all defendants. Plaintiff sought
compensatory, punitive, special, and treble 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 of orders entered on 25 November, the trial court
granted defendants’ motions to dismiss with respect to
plaintiff’s claims for unfair and deceptive trade practices,
medical malpractice, negligence, and negligence per se. The
trial court denied defendants’ motions with respect to
plaintiff’s claim for malicious prosecution. Plaintiff appeals.
________________________
As an initial matter, we note that plaintiff’s appeal is
interlocutory since plaintiff’s claim from his second complaint
for malicious prosecution remains pending before the trial
court.
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In general, a party cannot immediately appeal from an
interlocutory order. 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 by a timely appeal from a final judgment which
resolves the controversy on its merits.” Block v. 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.” Milton v. Thompson, 170
N.C. App. 176, 178, 611 S.E.2d 474, 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.
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Plaintiff’s claims, for unfair and deceptive trade
practices, medical malpractice, negligence, and negligence per
se, were dismissed by order of the trial court pursuant to
defendants’ motions to dismiss under Rule 12(b)(6). 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 plaintiff’s claim for unfair and deceptive trade
practices; and (II) by granting defendants’ motions and
dismissing plaintiff’s claims for medical malpractice and/or
negligence.
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I.
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, holds
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
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professional 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 concedes that defendants, as medical
professionals, “are members of [a] learned 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
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settlement 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 sent by one or more medical
professionals (defendants) to another group of medical
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 services rendered by members of a learned
profession . . . therefore falls within the exception in
N.C.G.S. § 75-1.1(b).” 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,
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[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, plaintiff’s argument is
without merit.
II.
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Next, plaintiff argues that the trial court erred by
granting defendants’ motions and 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
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In 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 sub-
subdivision 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
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grounds 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. Id. at 453, 500
S.E.2d at 742. The trial court granted the defendants’ motion
to dismiss on the grounds that the unauthorized disclosure of
medical records did not give rise to a claim for medical
malpractice. Id. at 455, 500 S.E.2d at 744. This Court
disagreed, stating that “in the context of a 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
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existed 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 also brought written claims for negligence,
negligence per se, and res ipsa loquitur in 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
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records 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 patient medical records. Plaintiff also alleged
that, because defendants engaged in two peer reviews of
plaintiff, defendants owed plaintiff a duty to “properly
safeguard[] and protect[]” records relating to these reviews
which were “stored under the exclusive care, custody and control
of MPMC[.]” Plaintiff further alleged that, in addition to
defendants “fail[ing] to exercise reasonable care and due
diligence in safeguarding [the] medical records generated by
Plaintiff, and Plaintiff’s peer review materials,” defendants
are liable under the doctrine of res ispa loquitur because
defendants’ “failure to safeguard Plaintiff’s private and
confidential materials is evidenced by the fact that said
Defendant[s] had exclusive possession, custody and control of
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said 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
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a 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, subject matter, issues involved, and relief
demanded[,]” plaintiff’s second complaint has been abated by
plaintiff’s first complaint. See id. Accordingly, the trial
court did not err in granting defendants’ motions to dismiss.
Affirmed.
Judges ELMORE and ERVIN concur.