Anderson v. Assimos

• Decision Date: 02 October 2001
• Docket Number: No. COA00-587.,COA00-587.
• Parties: Margaret Wrenn ANDERSON, Plaintiff, v. Dr. Dean George ASSIMOS, M.D., DR. R. Lawrence Kroovard, M.D., Dr. Mark R. Hess, M.D., Wake Forest University Physicians, Wake Forest University Baptist Medical Center, The Medical Center of Bowman Gray School of Medicine and North Carolina Baptist Hospital and The North Carolina Baptist Hospitals, Incorporated, Defendants.
• Court: North Carolina Court of Appeals

553 S.E.2d 63

146 NC App. 339

Margaret Wrenn ANDERSON, Plaintiff, v. Dr. Dean George ASSIMOS, M.D., DR. R. Lawrence Kroovard, M.D., Dr. Mark R. Hess, M.D., Wake Forest University Physicians, Wake Forest University Baptist Medical Center, The Medical Center of Bowman Gray School of Medicine and North Carolina Baptist Hospital and The North Carolina Baptist Hospitals, Incorporated, Defendants.

No. COA00-587.

Court of Appeals of North Carolina.

October 2, 2001.

Mary K. Nicholson, Greensboro, for plaintiff-appellant.

Tuggle, Duggins & Meschan, P.A., by Robert A. Ford and Demetrius L. Worley, Greensboro, for defendant-appellees.

GREENE, Judge.

Margaret Wrenn Anderson (Plaintiff) appeals an order filed 14 December 1999 granting the motion of Dr. Dean George Assimos (Dr. Assimos), Dr. R. Lawrence Kroovard, Dr. Mark R. Hess, Wake Forest University Physicians, Wake Forest University Baptist Medical Center, The Medical Center of Bowman Gray School of Medicine, North Carolina Baptist Hospital, and The North Carolina Baptist Hospitals, Inc. (collectively, Defendants) to dismiss Plaintiff's complaint.

Plaintiff filed a complaint on 17 August 1999 alleging medical malpractice on the part of Defendants in their failure "to adequately and properly and fully inform[ ] her of the risks known to be associated with" the administration of the drug gentamicin, a drug given to Plaintiff during her treatment by Defendants. Plaintiff also alleged res ipsa loquitur in her complaint. On 23 August 1999, Plaintiff filed a motion to "extend the statute of limitations for a period of 120 days to file a complaint in medical malpractice conforming to ... Rule 9(j) of the Rules of Civil Procedure as [it] relate[s] to medical malpractice actions." Plaintiff filed her amended complaint on 10 November 1999 detailing the medical treatment provided to her by Defendants and the symptoms she suffered after that treatment. Plaintiff's amended complaint, in pertinent part, alleged:

6.... [Plaintiff] went to the emergency room at North Carolina Baptist Hospital at the end of August of 1996 for a kidney problem.... [Plaintiff] became a little dizzy in the hospital. When [Plaintiff] came home from the hospital, she started down the hall of her home and staggered. She got worse and became really nauseated... and vomited seven or eight times. Her head was dizzy and she felt drunk, her ears felt like she was in an airplane and they were pushing out. This was the first time that she had this problem with her ears that she can recall. It is also the first time that she had the symptoms of dizziness related to a drunken feeling that she felt when she tried to do anything. Dr. Assimos' office is located at Baptist Hospital. [Plaintiff] was taken in a [wheelchair] to see Dr. Assimos [who was treating her for a kidney problem] and he told her nothing was wrong with her.... She then went to Duke Hospital on her own initiative and saw at least two doctors at Duke Hospital. [Plaintiff] received no medication at Duke Hospital, but Duke Hospital did do some testing.... She had to be taken, by her son, to Duke Hospital in a wheelchair because of her inability to walk, due to the dizziness and related problems.... Dr. Assimos [telephoned Plaintiff] at home, after she came back from Duke Hospital, and Dr. Assimos wanted her to come back to Baptist Hospital.... Upon[ ] Dr. Assimos' request, she went back to Baptist Hospital and stayed several days in September[ ] 1996. [Plaintiff] had a lot of tests done, the doctors at Baptist Hospital told her that she had a stroke and that they had found an ulcer. They dismissed her and she went home in September[ ] 1996. Around the first of October[ ] 1996, she went to see Dr. Brown at North Carolina Baptist Hospital.... Dr. Brown put water in [Plaintiff's] ears and she could not feel the water. Dr. Brown asked [Plaintiff] ... what medicine she had been given.... At the time ... [Plaintiff] saw Dr. Brown, she had already [scheduled] an appointment ... with Dr. Troost, again at North Carolina Baptist Hospital. After Dr. Troost looked at the results of the testing, he told [Plaintiff] that she had an equilibrium problem and that the drug "gentamicin" had burned out her ear.... [Dr. Assimos later telephoned Plaintiff] and he told her that gentamicin caused her problem.... [Plaintiff's kidney was removed and t]he kidney was practically a solid mass, like stone, when removed and was not functional. She still has problems with equilibrium, nausea and dizziness.... Plaintiff alleges that the drug that was administered was known to have a side effect that in fact occurred and had in fact occurred in other patients at the same hospital. [Defendants] failed to warn [Plaintiff] of the side effect.... [A] monitoring process was available to prevent the potential side effect and ... [D]efendants failed to monitor the drug and [Plaintiff's] injuries are the result of the drug treatment.

7. Pursuant to the injuries being caused by the sole acts of [Defendants, Plaintiff] alleges the doctrine of res ipsa loquitur.

8. Plaintiff contends that there was an injury, and that the occurrence causing the injury is one which ordinarily doesn't happen without negligence on someone's part and that the instrumentality which caused the injury was under the exclusive control and management of [Defendants].

Defendants filed a motion to dismiss Plaintiff's complaint on 16 November 1999 for Plaintiff's failure to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure.¹ At the hearing on Defendants' motion, Plaintiff's attorney stated Plaintiff is "an elderly woman, ... who has a very limited income." Prior to filing her complaint, Plaintiff attempted to obtain an expert witness to certify her complaint and had sent her medical file to expert witnesses. Plaintiff, however, was unable to obtain an expert witness because Defendants failed to perform a monitoring test and the expert witnesses would have to testify Defendants "had improperly applied the test that they didn't take." At the conclusion of the hearing, the trial court allowed Plaintiff's motion to amend her complaint and also allowed Defendants' motion to dismiss Plaintiff's complaint.

The issues are whether: (I) Plaintiff alleged facts establishing negligence through res ipsa loquitur; and (II) the pre-filing certification requirement of Rule 9(j) violates Article I, Section 18 of the North Carolina Constitution and the equal protection clauses of the federal and state constitutions.

I

Plaintiff argues the trial court erred in dismissing her complaint because her complaint stated a claim for negligence, alleging res ipsa loquitur. We disagree.

The doctrine of res ipsa loquitor applies if a plaintiff is able to establish, without the benefit of expert testimony, an injury would not typically occur in the absence of some negligence by the defendant. Diehl v. Koffer, 140 N.C.App. 375, 378, 536 S.E.2d 359, 362 (2000). Specifically, "the negligence complained of must be of the nature that a jury[,] through common knowledge and experience[,] could infer" negligence on the part of the defendant. Id. at 379, 536 S.E.2d at 362. If a medical drug is "an approved and acceptable treatment and the dosages as prescribed [are] proper, the mere fact that [a plaintiff] had an unfavorable reaction from its use would not make the doctrine of res ipsa loquitur applicable." Hawkins v. McCain, 239 N.C. 160, 169, 79 S.E.2d 493, 500 (1954).

In this case, the side effects of gentamicin and Defendants' possible failure to monitor those effects on Plaintiff are not areas within a jury's common knowledge or experience. Thus, Plaintiff needs the benefit of expert testimony to establish the standard of care to be used in the administration of gentamicin and Defendants' possible breach of this standard of care. See id. Accordingly, the doctrine of res ipsa loquitur did not apply to Plaintiff's medical malpractice action.

II

Plaintiff next argues the trial court erred in dismissing her complaint because Rule 9(j) is unconstitutional in that it unduly restricts her access to the courts and violates the equal protection clause of the state and federal constitutions.²

Access to the courts

Our North Carolina Constitution provides that "every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay." N.C. Const. art. I, § 18. This section was added to our North Carolina Constitution in 1868 and has its roots in the Magna Carta. John V. Orth, The North Carolina State Constitution 54 (1993). The promise was that "[j]ustice would be available to all who were injured; to this end, the courts would be `open.'" Id. The General Assembly, therefore, is "clearly forbidden" from enacting any statute that "impairs" the right of any person to recover for an injury to his person, property, or reputation. Osborn v. Leach, 135 N.C. 628, 631, 47 S.E. 811, 812 (1904). The General Assembly is permitted, under the "due course of law" language of section 18, to "define the circumstances under which a remedy is legally cognizable and those under which it is not." Lamb v. Wedgewood South Corp., 308 N.C. 419, 444, 302 S.E.2d 868, 882 (1983). Thus, the General Assembly is permitted to abolish or modify a claim if it has not vested, Pinkham v. Unborn Children of Jather Pinkham, 227 N.C. 72, 78, 40 S.E.2d 690, 694-95 (1946), establish a statute of limitations, Bolick v. American Barmag Corp., 54 N.C.App. 589, 593, 284 S.E.2d 188, 191 (1981), modified on other grounds, 306 N.C. 364, 293 S.E.2d 415 (1982),

establish a statute of repose, Lamb, 308 N.C. at 444,

302 S.E.2d at 882, or establish limited immunities for some claims, Pangburn v. Saad, 73 N.C.App. 336, 347, 326 S.E.2d 365, 372 (1985). In no event, however, may the General Assembly under the guise of "due course of law" deny a person, whose claim is...