Goodman v. Living Centers—Southeast, Inc. ( 2014 )

NO. COA13-1336
NORTH CAROLINA COURT OF APPEALS
Filed: 17 June 2014
ANNE B. GOODMAN, Administrator of
the Estate of RICHARD CLYDE BOST,
Deceased,
Plaintiff,
v. Rowan County
No. 13 CVS 172
LIVING CENTERS—SOUTHEAST, INC.,
d/b/a BRIAN CENTER OF SALISBURY
and/or BRIAN CENTER HEALTH &
REHABILITATION/SALISBURY,
Defendants.
Appeal by plaintiff from order entered 25 July 2013 by
Judge Mark E. Klass in Rowan County Superior Court. Heard in
the Court of Appeals 9 April 2014.
DORAN, SHELBY, PETHEL and HUDSON, P.A., by Michael Doran,
for plaintiff-appellant.
HAGWOOD ADELMAN TIPTON, by Amy E. Oleska, for defendant-
appellee.
ELMORE, Judge.
Anne B. Goodman (plaintiff), representative of the estate
of Richard Clyde Bost (the decedent), appeals from an order
dismissing her 18 January 2013 complaint against the Brian
Center of Salisbury (“defendant” or “Brian Center”). The trial
court’s order was predicated on the grounds that plaintiff’s
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claims were barred by the statute of repose. We conclude that
plaintiff’s claims were not in fact barred by the statute of
repose. Accordingly, the trial court’s order should be
reversed, and this case should be remanded for further
proceedings consistent with this opinion.
I. Procedural Background
On or about 22 April 2008, the decedent, at the age of
eighty-four, became a permanent resident of the Brian Center, a
long-term nursing and rehabilitation facility in Salisbury. On
13 September 2008, defendant, through its agents, allegedly
caused an instrumentality for the delivery of I.V. fluids to be
improperly positioned next to the decedent’s bed. Due to its
unstable placement, the instrumentality fell on the decedent
causing serious injuries to the decedent’s upper body, including
blunt trauma to his head, a broken nose, and various cuts and
contusions. The decedent was admitted to Rowan Regional
Medical Center and treated for his injuries. Once stabilized,
he was released to a different nursing home facility where he
later died on 6 October 2008. The decedent did not return to
the Brian Center at any point after the incident.
On 5 October 2010, plaintiff, on behalf of the decedent’s
estate, filed a complaint in Rowan County Superior Court seeking
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an award of damages on the basis of allegations sounding in
negligence, wrongful death, and breach of contract. On 18
January 2012, plaintiff voluntarily dismissed her action without
prejudice pursuant to Rule 41 of the North Carolina Rules of
Civil Procedure. One year later, on 18 January 2013, plaintiff
refiled her action against defendant, asserting the same three
causes of action as set forth in her 5 October 2010 complaint.
On 25 February 2013, defendant moved for dismissal of
plaintiff’s action and/or summary judgment in its favor on
grounds that (1) defendant was an improper party to the action
as it had not held a license or any interest in the requisite
facility since 2005, and (2) plaintiff’s claims were barred by
the statute of repose. On 24 July 2013, the trial court entered
an order dismissing plaintiff’s action with prejudice after
finding that plaintiff’s action was barred by the statute of
repose. Plaintiff timely appealed to this Court on 23 August
2013.
II. Analysis
On appeal, plaintiff argues that the trial court erred in
dismissing her action for failing to timely file under the
statute of repose when “the gravamen of the [c]omplaint is
ordinary negligence.” We agree.
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“This Court must conduct 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.”
Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580
S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673(2003). Further, when there are no disputed factual issues,
issues regarding the application of a statute of limitations or
statute of repose are questions of law reviewable de novo.
Udzinski v. Lovin, 159. N.C. App. 272, 273, 583, S.E.2d 648, 649
(2003), aff’d, 358 N.C. 534, 597 S.E.2d 703 (2004).
According to N.C. Gen. Stat. § 90-21.11(2)(a) (2013), a
medical malpractice action is defined as a “civil action for
damages for personal injury or death arising out of the
furnishing or failure to furnish professional [health care]
services.” The North Carolina Court of Appeals has defined
“professional services” as an act or service “arising out of a
vocation, calling, occupation, or employment involving
specialized knowledge, labor, or skill, and the labor [or] skill
involved is predominantly mental or intellectual, rather than
physical or manual.” Lewis v. Setty, 130 N.C. App. 606, 608,
503 S.E.2d 673, 674 (1998) (quotation omitted). The distinction
between medical malpractice actions and ordinary negligence
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actions is significant for two primary reasons. First, medical
malpractice actions are subject to the statute of repose, which
mandates: “[I]n no event shall an action be commenced more than
four years from the last act of the defendant giving rise to the
cause of action[.]” N.C. Gen. Stat. § 1-15(c). Second,
plaintiffs filing a medical malpractice action are required to
comply with the certification requirements of Rule 9(j) of the
North Carolina Rules of Civil Procedure. See N.C. R. Civ. P. §
1A-1, Rule 9(j). Specifically, pursuant to Rule 9(j), any
complaint alleging medical malpractice by a health care provider
pursuant to N.C. Gen. Stat. § 90-21.11(2)(a) (2013) 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 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
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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).
Defendant contends that plaintiff has waived her right to
argue that her action sounded in ordinary negligence because she
failed to allege ordinary negligence before the trial court. We
disagree. After reviewing the hearing transcript, it is clear
that defendant assumed plaintiff’s action was one for medical
malpractice and therefore based its argument for dismissal, in
part, on an alleged violation of the statute of repose.
However, a review of plaintiff’s complaint reveals that her
claims sounded in ordinary negligence. Plaintiff neither
referenced “medical malpractice” in her complaint nor did she
obtain expert certification pursuant to Rule 9(j). We assume
that the trial court found plaintiff’s claims sounded in medical
malpractice, given its dismissal of the action pursuant to the
statute of repose. However, the trial court need not have
reached the merits of defendant’s argument regarding the statute
of repose. Assuming the action was for medical malpractice, the
trial court was required to dismiss it on the basis that the
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complaint lacked a Rule 9(j) certification. See id. For the
forthcoming reasons, this is not a case in which the statute of
repose is applicable, and, accordingly, we must address
plaintiff’s argument that the action sounded in ordinary
negligence.
The crux of the issue before us is whether plaintiff’s
claims, which stem from an incident in which defendant, acting
through its agents, improperly placed an instrumentality for the
delivery of I.V. fluids near the decedent such that it fell and
injured him, constitute a medical malpractice action or an
action sounding in ordinary negligence. In making such
determination, we look to whether the injury resulted from the
application of “specialized knowledge, labor, or skill,” or from
actions which were primarily “physical or manual.” Setty at
608, 503 S.E.2d at 674. Prior case law is instructive. For
example, in Setty, the quadriplegic plaintiff was injured when
he was moved from an examination table to a wheelchair. Id.This Court held that the alleged negligent conduct was
“predominately a physical or manual activity” which did not
implicate the defendant’s professional services but fell
“squarely within the parameters of ordinary negligence.” Id.Similarly, in Norris v. Rowan Memorial Hospital, this Court
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concluded that the hospital employees’ failure to raise the
rails of a bed or instruct the patient to ask for assistance in
getting out of bed (which resulted in the patient falling and
breaking her hip) stemmed from ordinary negligence because the
“alleged breach of duty did not involve the rendering or failure
to render professional nursing or medical services requiring
special skills.” 21 N.C. App. 623, 626, 205 S.E.2d 345, 348
(1974). Finally, in Taylor v. Vencor, Inc., the administrator
of a patient’s estate brought a wrongful death action against a
nursing home, alleging that the nursing home failed “through
inadequate staffing and other negligent behavior, to provide
adequate observation and supervision” of a patient who died
after lighting her nightgown on fire when attempting to light a
cigarette. 136 N.C. App. 528, 529, 525 S.E.2d 201, 202 (2000).
This Court held that “the observance and supervision of the
plaintiff, when she smoked in the designated smoking area, did
not constitute an occupation involving specialized knowledge or
skill.” Id. at 530, 525 S.E.2d at 203. We additionally
remarked: “Preventing a patient from dropping a match or a
lighted cigarette upon themselves, while in a designated smoking
room, does not involve matters of medical science.” Id.-9-
In the instant case, plaintiff alleges that defendant
breached its duty (1) to exercise due care with respect to
providing reasonably safe living quarters for its residents, (2)
to warn residents of unsafe conditions, and (3) to supervise
patients when:
a) Defendant placed the aforesaid
instrumentality in such a position as to
be unreasonably unstable so as to
constitute a hazard to those in close
proximity hereto, such as plaintiff’s
decedent;
b) Defendant failed to properly supervise the
plaintiff’s decedent’s activities once
defendant installed use of the
instrumentality to provide intravenous
fluids to plaintiff’s decedent; AND
c) Defendant failed to warn plaintiff’s
decedent of the presence of the
instrumentality and to warn plaintiff’s
decedent of the instability of the
equipment.
In essence, plaintiff alleges that defendant, through its
agents, failed to safely position the I.V. apparatus in the
decedent’s room and failed to warn the decedent accordingly.
Based on prevailing case law, we hold that defendant’s acts or
failure to act clearly involved the exercise of manual dexterity
as opposed to the rendering of any specialized knowledge or
skill. See, e.g., Norris, 21 N.C. App. at 626, 205 S.E.2d at
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348. Accordingly, we hold that the claims asserted in
plaintiff’s complaint sound in ordinary negligence rather than
medical malpractice.
Given that plaintiff’s claims sound in ordinary negligence,
her action is subject to the three-year statute of limitations
set forth in N.C. Gen. Stat. § 1-52(16) (2013) (providing that
an action for personal injury not governed by the statute of
repose, N.C. Gen. Stat. § 1-15(c), shall be brought within three
years of the date upon which bodily harm to the claimant
“becomes apparent or ought reasonably to have become apparent to
the claimant, whichever event first occurs”). Here, the
decedent was injured on 13 September 2008. Plaintiff filed her
initial complaint within the three-year period on 5 October
2010. She subsequently voluntarily dismissed the action without
prejudice pursuant to Rule 41. Under Rule 41, a new action
based on the same claim may be commenced within one year after
such dismissal, and “the refiled case will relate back to the
original filing for purposes of tolling the statute of
limitations.” Losing v. Food Lion, L.L.C., 185 N.C. App. 278,
283, 648 S.E.2d 261, 264-65 (2007). Because plaintiff
voluntarily dismissed her complaint on 18 January 2012 and
timely refiled it on 18 January 2013, her complaint is not time
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barred. Further, given that plaintiff’s claims sounded in
ordinary negligence rather than medical malpractice, the four-
year statute of repose provided for in N.C. Gen. Stat. § 1-15(c)
was inapplicable. Plaintiff’s claims are not barred by the
statute of limitations or the statute of repose. Accordingly,
the trial court erred in dismissing plaintiff’s action with
prejudice on grounds that plaintiff violated the statue of
repose.
Reversed and remanded.
Judges McCULLOUGH and DAVIS concur.