Goodman v. Living Centers—Southeast, Inc.

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.

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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.