Locklear v. Cummings

IN THE SUPREME COURT OF NORTH CAROLINA
No. 202A17
Filed 17 August 2018
MARJORIE C. LOCKLEAR
v.
MATTHEW S. CUMMINGS, M.D., SOUTHEASTERN REGIONAL MEDICAL
CENTER, DUKE UNIVERSITY HEALTH SYSTEM, and DUKE UNIVERSITY
AFFILIATED PHYSICIANS, INC.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of
the Court of Appeals, ___ N.C. App. ___, 801 S.E.2d 346 (2017), reversing an order
entered on 2 February 2016 and affirming an order entered on 4 February 2016, both
by Judge James Gregory Bell in Superior Court, Robeson County. Heard in the
Supreme Court on 14 March 2018.
Law Offices of Walter L. Hart, IV, by Walter L. Hart, IV; and Fulmer Law Firm,
L.L.C., by H. Asby Fulmer, III, pro hac vice, for plaintiff-appellee.
Cranfill Sumner & Hartzog LLP, by Katherine Hilkey-Boyatt, David D. Ward,
and Matthew R. Gambale, for defendant-appellants Matthew S. Cummings,
M.D., Duke University Health System, and Duke University Affiliated
Physicians, Inc.
PER CURIAM.
This matter is before the Court based upon a dissent at the Court of Appeals.
Locklear v. Cummings, ___ N.C. App. ___, 801 S.E.2d 346 (2017). The dissent
concluded that plaintiff pled “a claim of medical malpractice by a healthcare provider
in her complaint, not a claim of ordinary negligence as asserted by the majority.” Id.
LOCKLEAR V. CUMMINGS
Opinion of the Court
at ___, 801 S.E.2d at 352 (Berger, J., concurring in part and dissenting in part). We
agree that the majority at the Court of Appeals erred when it converted plaintiff’s
claim of medical malpractice into a claim of ordinary negligence. See Viar v. N.C.
Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (per curiam) (“It is
not the role of the appellate courts . . . to create an appeal for an appellant.”). We
therefore reverse the decision of the Court of Appeals on that ground and remand this
case to that court to address whether the trial court erred in dismissing plaintiff’s
complaint. See Vaughan v. Mashburn, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (Aug. 17,
2018) (42PA17) (concluding “that a plaintiff in a medical malpractice action may file
an amended complaint under Rule 15(a)” by leave of court “to cure a defect in a Rule
9(j) certification when the expert review and certification occurred before the filing of
the original complaint”); Thigpen v. Ngo, 355 N.C. 198, 204, 558 S.E.2d 162, 166
(2002) (“[P]ermitting amendment of a complaint to add the expert certification where
the expert review occurred after the suit was filed would conflict directly with the
clear intent of the legislature.”).
REVERSED AND REMANDED.
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