Wright v. Atl. Orthopedics, P.A.

An unpublished opinion of the North Carolina Court of Appeals does not constitute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