Wright v. WakeMed

NO. COA14-695
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
BETTY D. WRIGHT,
Plaintiff
Vance County
v.
No. 13 CVS 782
WAKEMED also known as WAKE COUNTY
HOSPITAL SYSTEM, INC., GURVINDER SINGH
DEOL, M.D., and JULIAN SMITH, PA-C,
Defendants
Appeal by plaintiff from order entered 12 March 2014 by
Judge Beecher R. Gray in Vance County Superior Court. Heard in
the Court of Appeals 19 November 2014.
Rogers and Rogers Lawyers, by Michael F. Rogers, for
Plaintiff.
Yates, McLamb & Weyher, L.L.P., by Dan J. McLamb, Crystal
B. Mezzullo, and Andrew C. Buckner, for Defendants.
ERVIN, Judge.
Plaintiff Betty D. Wright appeals from an order granting
Defendants’ motion to dismiss Plaintiff’s complaint. [R51-53]
On appeal, Plaintiff contends that the trial court erred by
allowing Defendants’ dismissal motion on the grounds that
Plaintiff’s complaint was not certified as required by N.C. Gen.
Stat. § 1A-1, Rule 9(j) despite the fact that Plaintiff had
attempted to assert a medical malpractice claim against
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Defendants. After careful consideration of Plaintiff’s
challenge to the trial court’s order in light of the record and
the applicable law, we conclude that the trial court’s order
should be affirmed.
I. Factual Background
On 21 September 2010, Plaintiff was admitted to WakeMed
hospital for spinal surgery. Following the procedure, Plaintiff
was discharged by WakeMed’s Surgical and Recovery ACUTE unit and
transferred to the WakeMed REHAB unit on 28 September 2010.
At the time of the transfer, Plaintiff was provided with a
document entitled “WakeMed REHAB Admission Orders; Admission
Medication Orders,” which contained a list of medications that
had been prescribed for Plaintiff, including prescription and
general medications that had not been included in a previous
medication list prepared by WakeMed ACUTE for Plaintiff. More
specifically, Defendants negligently directed that Xanax, Geodon
and Lithium be included in the “Admission Medication Orders,”
resulting in the ingestion of these medications and an episode
of somnolence and lethargy from which Plaintiff suffered for
several days.
On 8 August 2013, Plaintiff filed a complaint seeking the
recovery of damages for personal injury from Defendants in which
Plaintiff alleged that she was entitled to prevail on a res ipsa
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loquitur theory. On 16 October 2013, Defendants filed an answer
in which they denied the material allegations set out in
Plaintiff’s complaint and sought to have Plaintiff’s complaint
dismissed on a number of grounds, including a failure to state a
claim upon which relief could be granted. After a hearing held
on 3 March 2014 for the purpose of considering the issues raised
by Defendants’ dismissal motion, the trial court entered an
order dismissing Plaintiff’s complaint. Plaintiff noted an
appeal to this Court from the trial court’s order.
II. Legal Analysis
In her sole challenge to the trial court’s order, Plaintiff
contends that the trial court erred by granting Defendant’s
dismissal motion. More specifically, Plaintiff contends that
the trial court erred by failing to determine that she had
properly alleged that she was entitled to relief on res ipsa
loquitur grounds.1 We do not find Plaintiff’s argument
persuasive.
A. Standard of Review
When ruling on a motion to dismiss pursuant to N.C. Gen.
Stat. § 1A-1, Rule 12(b)(6), the trial court is required to
1
Although Plaintiff seems to suggest that she stated a claim
for relief on “general negligence” as well as res ipsa loquitur
grounds, she has not advanced any “general negligence” argument
in her brief. As a result, our decision in this case will focus
solely on whether Plaintiff’s complaint stated a valid res ipsa
loquitur claim.
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determine “whether, as a matter of law, the allegations of the
complaint, treated as true, are sufficient to state a claim upon
which relief may be granted under some legal theory.” Harris v.
NCNB Nat’l Bank of N.C., 85 N.C. App. 669, 670, 355 S.E.2d 838,
840 (1987). In the course of analyzing the sufficiency of the
plaintiff’s pleading, the complaint must be liberally construed
and “should not be dismissed for failure to state a claim unless
it appears beyond doubt that [the] plaintiff could prove no set
of facts in support of his claim which would entitle him to
relief.” Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d
757, 758 (1987). “On appeal of a [] motion to dismiss [lodged
pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)], this Court
conducts 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.” Burgin v. Owen,
181 N.C. App. 511, 512, 640 S.E.2d 427, 429 (internal quotation
marks and citation omitted), disc. review denied and appeal
dismissed, 361 N.C. 425, 647 S.E.2d 98, cert. denied, 361 N.C.
690, 652 S.E.2d 257 (2007).
B. Applicable Legal Principles
N.C. Gen. Stat. § 1A-1, Rule 9(j) provides, in pertinent
part, that:
Any complaint alleging medical malpractice
by a health care provider pursuant to [N.C.
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Gen. Stat. §] 90-21.11(2)a. in failing to
comply with the applicable standard of care
under [N.C. Gen. Stat. §] 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 [N.C. Gen. Stat.
§ 8C-1,] Rule 702 [] and who is willing to
testify that the medical care did not comply
with the applicable standard of care; [or]
. . . .
(3) The pleading alleges facts establishing
negligence under the existing common law
doctrine of res ipsa loquitur.
As a result, given that Plaintiff’s complaint lacks a
certification in the form required by N.C. Gen. Stat. § 1A-1,
Rule 9(j), the trial court correctly dismissed that pleading
unless Plaintiff successfully asserted a claim based on the
doctrine of res ipsa loquitur.
“Res ipsa loquitur (the thing speaks for itself) simply
means that the facts of the occurrence itself warrant an
inference of defendant’s negligence, i.e., that they furnish
circumstantial evidence of negligence where direct evidence of
it may be lacking.” Sharp v. Wyse, 317 N.C. 694, 697, 346
S.E.2d 485, 487 (1986) (quotation marks, citation, and emphasis
omitted). “The doctrine of res ipsa loquitur applies when (1)
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direct proof of the cause of an injury is not available, (2) the
instrumentality involved in the accident is under the
defendant’s control, and (3) the injury is of a type that does
not ordinarily occur in the absence of some negligent act or
omission.” Alston v. Granville Health System, __ N.C. App. __,
__, 727 S.E.2d 877, 879 (internal quotation marks and citation
omitted), disc. review dismissed, 366 N.C. 247, 731 S.E.2d 421
(2012). Thus, in order to successfully assert a claim based on
the doctrine of res ipsa loquitur, a “plaintiff must [be] able
to show – without the assistance of expert testimony – that the
injury was of a type not typically occurring in the absence of
some negligence by defendant.” Diehl v. Koffer, 140 N.C. App.
375, 378, 536 S.E.2d 359, 362 (2000) (emphasis omitted). As a
result of the fact that the doctrine of res ipsa loquitur only
applies in the absence of direct proof of the cause of the
plaintiff’s injury, a plaintiff is not entitled to rely on it in
the event that there is direct evidence of the reason that the
plaintiff sustained the injury for which he or she seeks relief.
Robinson v. Duke University Health Systems, Inc., __ N.C. App.
__, __, 747 S.E.2d 321, 330 (2013), disc. review denied, __ N.C.
__, 755 S.E.2d 618 (2014).
In order for the doctrine of res ipsa loquitur “to apply in
a medical malpractice claim, a plaintiff must allege facts from
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which a layperson could infer negligence by the defendant based
on common knowledge and ordinary human experience.” Smith v.
Axelbank, __ N.C. App. __, __, 730 S.E.2d 840, 843 (2012). “Our
Courts have 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, __ N.C. App. at __,
747 S.E.2d at 329 (internal quotation marks and citation
omitted). Nevertheless,
where proper inferences may be drawn by
ordinary men from approved facts which give
rise to res ipsa loquitur without infringing
this principle, there should be no
reasonable argument against the availability
of the doctrine in medical and surgical
cases involving negligence, just as in other
negligence cases, where the thing which
caused the injury does not happen in the
ordinary course of things, where proper care
is exercised.
Mitchell v. Saunders, 219 N.C. 178, 182, 13 S.E.2d 242, 245
(1941).
C. Validity of Trial Court’s Ruling
In granting Defendants’ dismissal motion, the trial court
stated that:
6. Under North Carolina law, the doctrine
Res Ipsa Loquitur is limited to situations
in which the plaintiff can show--without the
assistance of expert medical testimony--that
the plaintiff’s injury was a result of a
negligent act by the defendant(s) and that
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the injury would not have occurred in the
absence of negligence or dereliction of a
relevant duty on the part of the
defendant(s). Res Ipsa Loquitur is not
appropriate when the question of injury is
peculiarly in the province of expert
opinion.
7. The allegations in plaintiff’s
Complaint involve purported negligence in
medication reconciliation and in the
administration of certain medications which
the Complaint alleges caused the plaintiff
to become somnolent and lethargic.
Purported negligence as to these issues
cannot be inferred absent expert testimony
and, as such, the doctrine of res ipsa
loquitur does not apply under North Carolina
law.
Plaintiff’s contention that she has stated a claim for relief on
the basis of the doctrine of res ipsa loquitur fails for
multiple reasons.
In her complaint, Plaintiff has alleged that the injuries
for which she seeks redress were sustained as the result of an
explicitly delineated series of events. More specifically,
Plaintiff has alleged that her injuries resulted from the
ingestion of specific medications that she should not have
received and that her ingestion of these medications resulted
from the fact that medications that she had not been prescribed
were included on the materials that accompanied her transfer
from WakeMed ACUTE to WakedMed REHAB. In support of this
assertion, Plaintiff produced a list of the medications that
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were originally prescribed for her and “Admission Medications
Orders” signed by Dr. Deol showing that Xanax, Geodon, and
Lithium had been added to the list of medications that she had
originally been instructed to take at or about the time of her
transfer. As a result, Plaintiff has explicitly alleged that
she was injured in a specific manner by a specific act of
negligence, a fact that bars her from any attempt to rely on the
doctrine of res ipsa loquitur.
In seeking to persuade us to reach a different result,
Plaintiff contends that she had not alleged the existence of
direct proof concerning the manner in which her injuries
occurred given that the drugs that she claims had been
erroneously administered to her had metabolized and had left her
body by the time of her discharge, thereby depriving her of
scientific evidence of their presence in her body. We do not
believe that this fact has any bearing on our analysis given
that the issue raised by Plaintiff’s claim is not whether
Plaintiff actually ingested the medications in question, but
rather how Plaintiff came to have ingested the medications and
what impact their ingestion had on her. As we have already
noted, Plaintiff alleged that a specific error that occurred
during the transfer process resulted in the administration of
these medications to her. Thus, the absence of chemical
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evidence that Plaintiff ingested the medications upon which her
claim rests does not suffice to establish that Plaintiff is
entitled to rely on the doctrine of res ipsa loquitur.
In addition, we do not believe that Plaintiff is entitled
to rely on the doctrine of res ipsa loquitur in this case given
that expert testimony would be necessary to establish the cause
of the injury that Plaintiff claims to have suffered. In
Axelbank, the plaintiff alleged that she had been injured as the
result of the fact that the defendant negligently prescribed a
particular medication for her and asserted that the existence of
negligence on the part of the defendant could be established
without the benefit of expert testimony, so that the plaintiff
was entitled to proceed on a res ipsa loquitur theory.
Axelbank, __ N.C. App. at __, 730 S.E.2d at 843. In rejecting
the plaintiff’s argument, this Court concluded that “a lay
person would not be able to determine that plaintiff’s injury
was caused by Seroquel or be able to determine that Dr. Axelbank
was negligent in prescribing the medication to plaintiff without
the benefit of expert witness testimony.” Id. In this case, as
in Axelbank, a jury would not be able to determine whether
Plaintiff’s injury resulted from the ingestion of Xanax, Geodon,
and Lithium without having the benefit of expert witness
testimony, since a lay juror would not necessarily know what
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these medications are, how they affect the human body, and how
they might be expected to affect Plaintiff specifically.
In Plaintiff’s view, Axelbank has no bearing on the proper
resolution of this case since Axelbank involved a situation in
which the defendant allegedly prescribed the wrong medication
while this case involves a situation in which errors were made
in transferring a list of medications from one document to
another. According to Plaintiff, one need not be a medical
expert to know that the medication list was erroneously
transferred and that this error constituted negligence. In
making this argument, however, Plaintiff appears to confuse the
meaning of “negligence” as used in the legal context with the
meaning of the same word as used in common parlance. Although
the inaccurate copying of a medication list might be understood
as a negligent act, that fact, standing alone, does not suffice
to establish a valid negligence-based claim for the recovery of
damages, which also requires proof that the negligent act on
which the plaintiff’s claim rests resulted in the injury for
which the plaintiff seeks redress. Gibson v. Ussery, 196 N.C.
App. 140, 143, 675 S.E.2d 666, 668 (2009). Assuming, without in
any way deciding, that Plaintiff can establish a deviation from
the applicable standard of care by showing the existence of the
copying error upon which she relies, Plaintiff cannot
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demonstrate that the injuries of which she complains resulted
from this specific negligent act in the absence of expert
testimony.2 Simply put, since “the average juror [is] unfit to
determine whether [P]laintiff’s [somnolence and lethargy] would
rarely occur in the absence of” the ingestion of Xanax, Geodon,
and Lithium, Schaffner v. Cumberland County Hosp. System, Inc.,
77 N.C. App. 689, 692, 336 S.E.2d 116, 118 (1985), disc. reviews
denied, 316 N.C. 195, 341 S.E.2d 578-79 (1986), Plaintiff’s
attempt to distinguish our decision in Axelbank is not
persuasive. As a result, since Plaintiff has not established
that she successfully pled a claim against Defendants on the
basis of the doctrine of res ipsa loquitur, the trial court
correctly dismissed her complaint.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
none of Plaintiff’s challenges to the trial court’s order have
2
In addition, we note that, even if a lay person could be
expected to understand the effect that the specific medications
that Plaintiff claims to have negligently ingested would have on
the human body, a successful plaintiff would still be required
to obtain expert proof that her injuries resulted from the
ingestion of these specific medications given that the
“Admission Medication Orders” indicate that over a dozen
medications had been prescribed for Plaintiff and that expert
medical testimony would be necessary to explain the interactions
among this collection of medications and whether the injuries
that Plaintiff claims to have sustained could have resulted from
the ingestion of one or more of these other medications.
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merit. As a result, the trial court’s order should be, and
hereby is, affirmed.
AFFIRMED.
Judges ELMORE and DAVIS concur.