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

An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
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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).