Estate of Waters v. Jarman

• Decision Date: 05 June 2001
• Docket Number: No. COA00-510.,COA00-510.
• Citation: 547 S.E.2d 142,144 NC App. 98
• Court: North Carolina Court of Appeals
• Parties: The ESTATE OF John WATERS, Swannie Taylor Waters, Administratrix, Plaintiff, v. Wayne Thomas JARMAN; John Berry; Kinston Surgical Associates, P.A.; Robert William Bynum; Eastern Nephrology Associates, PLLC; Lenoir Memorial Hospital, Inc. d/b/a Lenoir Memorial Hospital, Defendants.

547 S.E.2d 142

144 NC App. 98

The ESTATE OF John WATERS, Swannie Taylor Waters, Administratrix, Plaintiff, v. Wayne Thomas JARMAN; John Berry; Kinston Surgical Associates, P.A.; Robert William Bynum; Eastern Nephrology Associates, PLLC; Lenoir Memorial Hospital, Inc. d/b/a Lenoir Memorial Hospital, Defendants.

No. COA00-510.

Court of Appeals of North Carolina.

June 5, 2001.

Faison & Gillespie, by O. William Faison and John W. Jensen, Durham, for plaintiff-appellant.

Harris, Shields, Creech and Ward, P.A., by Robert S. Shields, Jr., New Bern, for defendant-appellees.

MARTIN, Judge.

This action arises out of medical treatment provided by Drs. Wayne Jarman, Robert Bynum and John Berry to John Waters [hereinafter "decedent"] at Lenoir Memorial Hospital [hereinafter "defendant hospital"] from 8 June 1997 through 20 June 1997. Decedent was transferred to Pitt County Memorial Hospital on 20 June and died on 6 August 1997. The complaint alleges negligence on the part of the three physicians for failing to diagnose appendicitis and asserts claims against Kinston Surgical Associates and Eastern Nephrology Associates, PLLC, under the theory of respondeat superior. The complaint also asserts claims against defendant hospital under the theories of respondeat superior and corporate negligence. The corporate negligence claims allege that defendant was negligent by failing to adequately assess the physicians' credentials before granting hospital privileges, by continuing the physicians' privileges at the hospital, by failing to monitor and oversee the physicians' performances, and by failing to follow its own procedures.

As required by G.S. § 1A-1, Rule 9(j), the complaint certified that "[t]he medical care in this action was reviewed by persons reasonably expected to qualify as expert witnesses pursuant to Rule 702 of the North Carolina Rules of Evidence" and that those persons "are willing to testify that the medical care did not comply with the applicable standard of care." The complaint then stated:

This pleading, however, also alleges facts establishing breaches of common law duties for which certification of compliance with Rule 9(j) is not required. In particular, the claims against the Hospital—which do not allege "medical malpractice by a health care provider ... in failing to comply with the applicable standard of care," but rather, allege respondeat superior and common law corporate negligence—fall outside the requirements of Rule 9(j) of the North Carolina Rules of Civil Procedure and, as such, compliance with Rule 9(j) with respect to these claims is not required.

In its answer, defendant sought dismissal because plaintiff failed to comply with Rule 9(j) as to its claims of corporate negligence. The trial court allowed the motion and dismissed the corporate negligence claim against defendant hospital. The trial court certified its order as a final judgment pursuant to G.S. § 1A-1, Rule 54(b). Plaintiff appeals.

The sole issue before this Court is whether Rule 9(j) certification is required when a plaintiff alleges corporate negligence claims against a hospital. G.S. § 1A-1, Rule 9(j) provides, in pertinent part:

Any complaint alleging medical malpractice by a health care provider as defined in G.S. 90-21.11 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 has 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.

N.C. Gen.Stat. § 1A-1, Rule 9(j) (2000). Rule 9(j) was enacted in 1995, "in part, to protect defendants from having to defend frivolous medical malpractice actions by ensuring that before a complaint for medical malpractice is filed, a competent medical professional has reviewed the conduct of the defendants and concluded that the conduct did not meet the applicable standard of care." Webb v. Nash Hospitals, Inc., 133 N.C.App. 636, 639-40, 516 S.E.2d 191, 194, disc. review denied, 351 N.C. 122, 541 S.E.2d 471 (1999).

The applicable standard of care in medical malpractice actions is governed by G.S. § 90-21.12, which was enacted in 1975 and provides:

In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities....

Establishing the standard of care owed by a health care provider in a medical malpractice action generally requires "highly specialized knowledge" not within the common knowledge of a layperson. Mazza v. Huffaker, 61 N.C.App. 170, 175, 300 S.E.2d 833, 837, disc. review denied, 309 N.C. 192, 305 S.E.2d 734 (1983). Therefore, expert testimony is often required in medical malpractice actions. Id. Thus, resolution of this case depends upon whether corporate negligence claims asserted against a hospital constitute medical malpractice actions. If the claims are medical malpractice actions, Rule 9(j) requires certification of expert review in the pleading.

Our statute governing actions for medical malpractice defines "medical malpractice action" as:

a civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.

N.C. Gen.Stat. § 90-21.11 (1999). Pursuant to this section, a hospital constitutes a "health care provider." Id.

We have previously established that some negligence claims asserted against a health care provider do not fit within the statutory definition of medical malpractice. In Lewis v. Setty, 130 N.C.App. 606, 503 S.E.2d 673 (1998), the plaintiff alleged that the physician was negligent in failing to lower the examination table prior to transferring the plaintiff to his wheelchair. The action was dismissed by the trial court for failure to comply with Rule 9(j). Id. at 607, 503 S.E.2d at 673. On appeal, we held that compliance with Rule 9(j) was not required because the cause of action did not arise out of the "furnishing of professional services" and therefore did not fit the definition of a medical malpractice action. Id. at 608, 503 S.E.2d at 674. See also Taylor v. Vencor, 136 N.C.App. 528, 525 S.E.2d 201,

disc. review denied, 351 N.C. 646, 543 S.E.2d 884 (2000) (holding the claim was not a medical malpractice action where the plaintiff sued a nursing home for failure to adequately supervise her elderly mother while she smoked cigarettes).

It is undisputed that the claims asserted in this action involve the furnishing of professional services; however, the pertinent question here appears to be whether the claims arose "in the performance of medical, dental, or other health care by a health care provider." N.C. Gen.Stat. § 90-21.11 (emphasis added). A review of the case law involving corporate negligence claims asserted against a hospital reveals that there are fundamentally two kinds of claims: (1) those relating to negligence in clinical care provided by the hospital directly to the patient, and (2) those relating to negligence in the administration or management of the hospital. The case law has treated the two types of claims differently.

Our courts have applied the medical malpractice statutory standard of care and required expert testimony where the corporate negligence claims arose out of clinical care provided by the hospital to the patient. In Clark v. Perry, 114 N.C.App. 297, 442 S.E.2d 57 (1994), the plaintiff sued a hospital for failing to obtain informed consent prior to performing a blood transfusion. The court noted that expert testimony is required to establish the standard of care regarding failure to obtain informed consent, and held that plaintiff failed to make out a prima facie case because no evidence was produced about the standard of care utilized by health care facilities in similar communities when obtaining a patient's informed consent to a blood transfusion. Id. at 316, 442 S.E.2d at 67-68. In Tripp v. Pate, 49 N.C.App. 329, 271 S.E.2d 407 (1980), the plaintiff alleged the hospital was negligent in failing to promptly report test results to her physician. This Court upheld a directed verdict in favor of defendant hospital, holding that the plaintiff failed to offer...