Bluitt v. Wake Forest Univ. Baptist Med. Ctr. , 259 N.C. App. 1 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1170
Filed: 17 April 2018
Forsyth County, No. 17 CVS 763
ANGELA MESHELL BLUITT, Plaintiff,
v.
WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, WAKE FOREST
UNIVERSITY, NORTH CAROLINA BAPTIST HOSPITAL and EVAN RUBERY,
MD, Defendants.
Appeal by plaintiff from order entered 1 June 2017 by Judge Richard S.
Gottlieb in Forsyth County Superior Court. Heard in the Court of Appeals
21 March 2017.
The Law Office of Java O. Warren, by Java O. Warren, and Christopher Allen
White Law, by Christopher Allen White, for plaintiff-appellant.
Smith Moore Leatherwood LLP, by Kip D. Nelson, D. Clark Smith, Jr. and
Joshua O. Harper, for defendants-appellees.
ARROWOOD, Judge.
Angela Meshell Bluitt (“plaintiff”) appeals from an order granting Wake Forest
University Baptist Medical Center, Wake Forest University, North Carolina Baptist
Hospital, and Evan Rubery, MD’s (“defendants”) motion to dismiss for failure to
comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. For the reasons
stated herein, we affirm the order of the trial court.
I. Background
BLUITT V. WAKE FOREST UNIV. BAPTIST MEDICAL CENTER
Opinion of the Court
On 31 January 2017, plaintiff filed a complaint for medical negligence against
defendants, relying on the theory of res ipsa loquitur. The complaint alleged as
follows. On or about 31 January 2014, plaintiff underwent a cardiac ablation, a
surgery to remedy an irregular heartbeat, at Wake Forest University Baptist Medical
Center. Plaintiff received general anesthesia, rendering her unconscious during the
procedure. When plaintiff awoke after the surgery, she immediately “experienced
horrific and excruciating pain in her lower back.” Prior to being admitted for the
cardiac ablation, plaintiff had no back pain or injury, and she claims no personal
knowledge as to how, why, or when she sustained the injury to her back. On or about
24 February 2014, the injury on plaintiff’s lower back was diagnosed as a third-
degree burn. Due to the injury, plaintiff underwent a skin graft on 28 February 2014.
Based on these facts, plaintiff alleges that the negligence of defendants was the
proximate cause of the injury and damage to her person. The complaint did not allege
that plaintiff’s medical care had been reviewed by an expert prior to filing.
On 7 April 2017, defendants filed a motion to dismiss for failure to comply with
Rule 9(j). Defendants filed a brief in support of their motion, and submitted four
affidavits from cardiac electrophysiologists to support their arguments that the
motion to dismiss should be granted because: (1) plaintiff’s complaint failed to allege
facts that establish negligence pursuant to res ipsa loquitur; (2) North Carolina rarely
applies res ipsa loquitur to medical malpractice claims; (3) plaintiff’s alleged injury
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Opinion of the Court
was an inherent risk of the procedure she underwent; and (4) even if the burns were
not an inherent risk of the procedure, the average juror would require expert
testimony to determine whether defendants’ conduct fell below the applicable
standard of care. In response, plaintiff submitted a brief opposing defendants’
motion, photographs of plaintiff’s back following the 31 January 2014 surgery, and
affidavits from plaintiff and two of her family members.
On 30 May 2017, defendants’ motion came on for hearing in Forsyth County
Superior Court, the Honorable Richard S. Gottlieb presiding. On 1 June 2017, Judge
Gottlieb granted defendants’ motion, ruling that plaintiff’s complaint failed to comply
with Rule 9(j) of the North Carolina Rules of Civil Procedure.
Plaintiff appeals.
II. Discussion
On appeal, plaintiff argues that the trial court erred by granting defendants’
motion to dismiss pursuant to Rule 9(j) of the North Carolina Rules of Civil
Procedure. Specifically, plaintiff argues the trial court converted the motion to
dismiss into a motion for summary judgment by considering defendants’ expert
affidavits, and erred by impermissibly applying Rule 9(j)(1) and (2)’s certification
requirements to her Rule 9(j)(3) claim, and, in so doing, failed to treat the complaint’s
allegations as true. We disagree and affirm the trial court’s dismissal of plaintiff’s
complaint.
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BLUITT V. WAKE FOREST UNIV. BAPTIST MEDICAL CENTER
Opinion of the Court
We review the trial court’s dismissal pursuant to Rule 12(b)(6) of the North
Carolina Rules of Civil Procedure de novo. Alston v. Hueske, 244 N.C. App. 546, 548,
781 S.E.2d 305, 308 (2016) (citation omitted). “In medical malpractice actions,
complaints must meet a higher standard than generally required to survive a motion
to dismiss[,]” in that they must also meet the requirements of Rule 9(j). Id. at 551-
52, 781 S.E.2d at 309 (citation omitted). “[W]hen ruling on [a motion to dismiss
pursuant to Rule 9(j)], a court must consider the facts relevant to Rule 9(j) and apply
the law to them.” McGuire v. Riedle, 190 N.C. App. 785, 787, 661 S.E.2d 754, 757
(2008) (quoting Phillips v. A Triangle Women’s Health Clinic, 155 N.C. App. 372, 376,
573 S.E.2d 600, 603 (2002)). “[A] trial court’s order dismissing a complaint pursuant
to Rule 9(j) is reviewed de novo on appeal because it is a question of law.” Alston, 244
N.C. App. at 549, 781 S.E.2d at 308 (internal quotation marks and citation omitted).
Rule 9(j) 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 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;
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Opinion of the Court
(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) (2017).
Res ipsa loquitur applies when (1) direct proof of the cause of an injury is
unavailable, (2) defendant controlled the instrumentality involved in the accident,
and (3) “the injury is of a type that does not ordinarily occur in the absence of some
negligent act or omission.” Grigg v. Lester, 102 N.C. App. 332, 333, 401 S.E.2d 657,
657-58 (1991) (citations omitted). “The certification requirements of Rule 9(j) apply
only to medical malpractice cases where the plaintiff seeks to prove that the
defendant’s conduct breached the requisite standard of care—not to res ipsa loquitur
claims.” Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 103 (2002) (citation
omitted). A plaintiff alleging res ipsa loquitur must show that the injury resulted
from defendant’s negligent act, and also “must be able to show—without the
assistance of expert testimony—that the injury was of a type not typically occurring
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in [the] absence of some negligence by defendant.” McGuire, 190 N.C. App. at 789,
661 S.E.2d at 758 (internal quotation marks, brackets, and citation omitted).
We first address plaintiff’s argument that the trial court applied the incorrect
standard of review because its consideration of defendants’ experts’ affidavits
converted the motion to dismiss into a motion for summary judgment. Our Court has
previously addressed this argument, explaining that although “a motion to dismiss
under Rule 12(b)(6) may be converted to a motion for summary judgment in” a
situation where matters outside the pleadings are received and considered in ruling
on a Rule 12(b)(6) motion to dismiss, when a court rules on “a motion to dismiss
pursuant to Rule 9(j), a court must consider the facts relevant to Rule 9(j) and apply
the law to them.” McGuire, 190 N.C. App. at 787, 661 S.E.2d at 757 (internal
quotation marks, brackets, and citations omitted). Accordingly, a trial court’s
consideration of affidavits related to its Rule 9(j) ruling does not convert a motion to
dismiss into a motion for summary judgment. See id. at 787, 661 S.E.2d at 757. Thus,
the trial court did not err by failing to convert the motion into a summary judgment
motion.
Next, plaintiff contends that the trial court allowed defendants to use the Rule
9(j)(1) and (2) certification requirements to obtain a dismissal of her complaint, even
though she pleaded a claim pursuant to Rule 9(j)(3), which she claims stripped her of
the right to have her complaint’s allegations treated as true pursuant to Rule 12(b)(6).
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Opinion of the Court
We disagree. Plaintiff’s complaint failed to allege facts establishing negligence under
the doctrine of res ipsa loquitur pursuant to Rule 9(j)(3); thus, the trial court correctly
dismissed the complaint pursuant to Rule 9(j).
Our Court has “consistently found that ‘res ipsa loquitur is inappropriate in
the usual medical malpractice case, where the question of injury and the facts in
evidence are peculiarly in the province of expert opinion.’ ” Robinson v. Duke Univ.
Health Sys., Inc., 229 N.C. App. 215, 225, 747 S.E.2d 321, 329 (2013) (quoting Bowlin
v. Duke Univ., 108 N.C. App. 145, 149-50, 423 S.E.2d 320, 323 (1992)) (citation
omitted). Nonetheless, res ipsa loquitur claims are appropriate in medical
malpractice cases where:
[t]he common knowledge, experience and sense of laymen
qualifies them to conclude that some medical injuries are
not likely to occur if proper care and skill is used; included,
inter alia, are injuries resulting from surgical instruments
or other foreign objects left in the body following surgery
and injuries to a part of the patient’s anatomy outside of
the surgical field.
Id. at 225, 747 S.E.2d at 331 (quoting Grigg, 102 N.C. App. at 335, 401 S.E.2d at 659).
We have applied this doctrine in a somewhat restrictive manner, as our Supreme
Court has recognized that:
the majority of medical treatment involves inherent risks
which even adherence to the appropriate standard of care
cannot eliminate. This, coupled with the scientific and
technical nature of medical treatment, renders the average
juror unfit to determine whether [a] plaintiff’s injury would
rarely occur in the absence of negligence. Unless the jury
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is able to make such a determination[, a] plaintiff clearly is
not entitled to the inference of negligence res ipsa [loquitur]
affords.
Id. at 225-26, 747 S.E.2d at 329-30 (quoting Schaffner v. Cumberland County Hosp.
System, 77 N.C. App. 689, 692, 336 S.E.2d 116, 118 (1985)).
In accordance with this principle, our Court will affirm the dismissal of medical
negligence complaints based on the res ipsa loquitur doctrine where both the
standard of care and its breach must be established by expert testimony. See, e.g.,
Hayes v. Peters, 184 N.C. App. 285, 288, 645 S.E.2d 846, 848 (2007) (holding that
expert testimony was necessary for the average juror to determine whether a stroke
from air emboli during an esophagastroduodenoscopy surgical procedure was an
injury that would not normally occur in the absence of negligence); Howie v. Walsh,
168 N.C. App. 694, 698-99, 609 S.E.2d 249, 252 (2005) (holding that expert testimony
was necessary for the average juror to determine whether the defendant dentist used
excessive or improper force when plaintiff’s jaw broke during a wisdom tooth
extraction); Grigg, 102 N.C. App. at 335, 401 S.E.2d at 659 (holding that expert
testimony was necessary for the average juror to determine whether the force exerted
by the defendant obstetrician during a cesarean section was improper or excessive).
Here, plaintiff’s cause of action for medical malpractice is premised on the
assertion that defendants negligently burned her back while performing a cardiac
ablation. She contends that her complaint meets the pleading requirements for a res
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Opinion of the Court
ipsa loquitur claim, while defendants contend that res ipsa loquitur cannot apply as
a matter of law to the facts alleged because expert testimony is required for a
layperson to evaluate the facts at issue. Defendants support their position with four
affidavits from specialists in the field who explain the procedures involved in a
cardiac ablation, and that burns to the back, such as the one plaintiff suffered, are an
unforeseeable, inherent risk of a cardiac ablation, and can occur without negligence
on the part of the physician performing the procedure.
We agree with defendants that the facts alleged in the complaint necessarily
defeat a res ipsa loquitur claim. The procedures involved in a cardiac ablation, which
is a complex medical procedure, are outside of common knowledge, experience, and
sense of a layperson; thus, without expert testimony, a layperson would lack a basis
upon which to make a determination as to whether plaintiff’s back injury was an
injury that would not normally occur in the absence of negligence, or was an inherent
risk of a cardiac ablation. When a plaintiff claiming medical negligence would not be
able to show that the injury was of a type not typically occurring in the absence of
some negligence by a defendant without the use of expert testimony, as here, res ipsa
loquitur claims are inappropriate. McGuire, 190 N.C. App. at 789, 661 S.E.2d at 758(internal quotation marks and citation omitted).
Based on the facts in the record related to Rule 9(j), it is clear that plaintiff
would not be able to prove her claim without the use of expert testimony. Therefore,
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Opinion of the Court
plaintiff’s complaint did not meet the requirements of Rule 9(j). Accordingly,
dismissal pursuant to Rule 9(j) was proper.
AFFIRMED.
Judges STROUD and DAVIS concur.
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