Wright v. Atl. Orthopedics, P.A. ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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 defendant-
    appellees.
    BRYANT, Judge.
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    Where 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      in    her    left       knee.       The    arthroplasty       was
    performed   by     Dr.   Walter       W.    Frueh,     an    orthopedic       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.                             Wright was
    subsequently       referred      to     a    plastic        surgeon    for     the     skin
    laceration.        On    21    April,       Wright     was    discharged       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    alleged      the       following      claims     brought    by     Mrs.
    Wright:    negligence      against          Dr.   Frueh      for    causing    the     skin
    laceration;      claims        against       Atlantic        Orthopedics       based     on
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    respondeat 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
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    requirements.   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 S.E.2d 465
    ,      477   (2009)   (citations    and
    quotations omitted).     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)").
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    Plaintiffs       contend    the     trial    court   erred     in   granting
    Atlantic    Orthopedics’     motion     to   dismiss     because    plaintiffs’
    complaint    met     the     pleading     requirements      of     Rule    9(j).
    Plaintiffs    gave     the     following        statement    of     Rule   9(j)
    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
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    expert witness under Rule 702 of the
    Rules of Evidence and who is willing
    to    testify that the medical care did not
    comply with the applicable standard
    of care;
    (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    with    plaintiffs     that      the   statement      in   their
    complaint   facially      meets   the    requirements       of   Rule    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    its    order    granting      Atlantic    Orthopedics’        motion    to
    dismiss   pursuant   to    Rule   9(j),       the   trial   court     noted      that
    plaintiffs failed to comply with the requirements of Rule 9(j),
    and “that the motion should be allowed based on the deposition
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    testimony     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.                                   I
    did   not    feel    that     he    had    any       involvement       in       [plaintiff’s]
    injury.”      Upon further questioning, Dr. Jackson stated that,
    based   on   his     review    of    defendants’         deposition         testimony        and
    plaintiff’s    medical        records,         the    only    person    who       was    likely
    negligent     in     causing        plaintiff’s         skin     laceration            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.     Jackson’s        deposition         supported          a    finding     of
    possible     negligence        only        against       Dr.     Frueh’s          physician’s
    assistant.         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.
    -8-
    App.    ___,   ___,    
    747 S.E.2d 321
    ,    328    (2013)      (“[E]ven        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.” (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.    review    denied,         
    366 N.C. 420
    ,    
    735 S.E.2d 332
       (2012).
    Proper   reasons       for    denying      a    motion    to    amend       include    undue
    delay, unfair prejudice, bad faith, futility of amendment, and
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    repeated failure of the moving party to cure defects by other
    amendments.      Delta, 132 N.C. App. at 166, 
    510 S.E.2d at 694
    .
    Here,    the    record     does       not    include        a     clear    ruling       on
    plaintiffs’ motion to amend.                 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    so    presented    in    the       several        briefs.        Issues      not
    presented       and    discussed        in     a        party’s        brief     are    deemed
    abandoned.").           Therefore,       we        do    not      consider       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       further       contend       the     trial        court     erred      in
    granting       Atlantic    Orthopedics’             motion        to     dismiss        because
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    plaintiffs’ complaint is rooted in common-law negligence and res
    ipsa loquitor and, therefore, the requirements of Rule 9(j) are
    not applicable.           In pleading a claim for medical negligence, a
    claim   may    satisfy       the     requirements      of    Rule    9   if    the    claim
    “alleges      facts       establishing       negligence        under     the     existing
    common-law     doctrine       of     [negligence       or]    res     ipsa     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       of    respondeat       superior.”         This      allegation       by
    plaintiffs      is        narrowly     tailored,       as     it     strictly        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
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    Dr. 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
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    specifically tied to the negligent acts of Atlantic Orthopedics’
    physician, Dr. Frueh.
    Accordingly,   the   ruling   of   the   trial   court   granting
    Atlantic Orthopedics’ motion to dismiss is affirmed.
    Affirmed.
    Judges CALABRIA and GEER concur.
    Report per Rule 30(e).