Gause v. New Hanover Reg'l Med. Ctr.
| Decision Date | 30 December 2016 |
| Docket Number | No. COA16-595,COA16-595 |
| Citation | 251 N.C.App. 413,795 S.E.2d 411 |
| Parties | Joyce Vera Livingston GAUSE, individually, Natalie Gause, as GAL on behalf of Joyce Vera Livingston and Vertis Gause, individually, Plaintiffs, v. NEW HANOVER REGIONAL MEDICAL CENTER, Defendant. |
| Court | North Carolina Court of Appeals |
The Law Offices of Adam Neijna, PLLC, Raleigh, by Adam M. Neijna, for Plaintiffs-Appellants.
Harris, Creech, Ward & Blackerby, P.A., by Heather M. Beam, R. Brittain Blackerby, and Jay C. Salsman, New Bern, for Defendant-Appellee.
Linwood L. Jones, Raleigh, for North Carolina Hospital Association, amicus curiae.
When a hospital patient injured in a fall during an x-ray examination brings a claim for ordinary negligence, but pre-trial discovery reveals that the fall occurred when the x-ray technician was rending services requiring specialized skill and clinical judgment, the claim sounds in medical malpractice and is subject to dismissal based on the patient's failure to comply with Rule 9(j) of the Rules of Civil Procedure.
Plaintiffs Natalie Gause ("Natalie") and Josie May Gause Brown (collectively "Plaintiffs"), in their respective capacities for decedents Joyce Vera Livingston Gause ("Mrs. Gause" or "Plaintiff Gause"), and her husband, Vertis Ceamore Gause, appeal from an order dismissing Plaintiffs’ negligence cause of action and denying Plaintiffs’ Motion to Amend the Complaint.2 Because Plaintiffs’ complaint sounded in medical malpractice, not ordinary negligence, we affirm the trial court.
On 16 March 2015, Natalie drove her mother, Mrs. Gause, to the Emergency Department of New Hanover Regional Medical Center ("Defendant" or "New Hanover") because Mrs. Gause was experiencing chest pains related to a fall several days prior. Mrs. Gause was 73-years-old and had a history of falling due to unsteadiness, often requiring assistance to walk distances.
At a triage station in the Emergency Department, a nurse assessed Mrs. Gause's chief complaint, determined her priority status, and ordered the hospital protocol for evaluating a complaint of chest pain. The nurse entered an order requesting, inter alia , an "x-ray chest PA or AP."
A posterior-anterior ("PA") chest x-ray requires the patient to be in a standing position with an x-ray board, called a wall bucky, in front of the patient and the x-ray tube behind the patient. An anterior-posterior ("AP") chest x-ray may be taken with the patient standing, sitting, or lying down. A "PA" x-ray is optimal because it provides a superior image with the most information about the patient, allowing a more accurate diagnosis.
After waiting several minutes, Mrs. Gause was taken into a restricted area within the emergency department and assessed by another nurse. Following the second nurse's assessment, the x-ray technician, Kayne Darrell ("Darrell"), met Mrs. Gause and Natalie in the triage hallway and transported Mrs. Gause in a wheelchair to a radiology room. Natalie remained in the hallway.
Darrell and Mrs. Gause were the only two people in the radiology room when Darrell explained the chest x-ray process to Mrs. Gause, stating that she would ask Mrs. Gause to stand at the wall bucky. Darrell asked Mrs. Gause if she thought that she would be able to stand for the x-ray. Mrs. Gause answered, "I think so."
According to Darrell, as soon as Mrs. Gause said, "I think so," to Darrell's surprise she "immediately, and rapidly, stood up, unassisted" from the wheelchair. According to a doctor with whom Darrell spoke later that day, Darrell said that "she stood the patient up" from the wheelchair.
Darrell watched as Mrs. Gause took a few steps toward the wall bucky, watched Mrs. Gause for three or four seconds, and assessed that Mrs. Gause seemed "very stable." Darrell then turned around and walked several steps away from the patient to move a tube into position to take the x-ray. After three or four seconds, Darrell turned back toward Mrs. Gause and saw her falling backward. Darrell immediately ran to try to break the fall but could not reach Mrs. Gause before her head struck the floor. Mrs. Gause suffered a severe traumatic brain injury as a result of the fall.
Mrs. Gause's brain injury left her unable to communicate and unable to independently perform basic activities of daily living. She became a resident at a long-term nursing care facility where she received twenty-four-hour, around-the-clock care. She died in the nursing care facility on 10 June 2016, approximately 15 months after the fall.
On 15 July 2015, while Mrs. Gause was still living, Plaintiffs filed a complaint in New Hanover County Superior Court alleging Defendant was liable for ordinary negligence and negligence on a theory of res ipsa loquitur . In the ordinary negligence claim, Plaintiffs alleged that "Defendant negligently/or carelessly:"
The Complaint did not label any claim as one for medical malpractice and did not contain a certification of compliance with Rule 9(j), which requires expert review prior to the filing of a medical malpractice action.
On 1 October 2015, Defendant filed an Answer asserting, inter alia , that the Complaint "should be dismissed for failure of the Plaintiff[s] to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure." The parties then proceeded with discovery.
In response to an interrogatory, Plaintiff Gause listed 20 specific ways that Defendant was negligent, including, inter alia , contentions that Defendant "[f]ailed to inquire as to Plaintiff's condition, history of falls, limited mobility, problems with standing, and risk of falling;" "[f]ailed to conduct a fall risk assessment to determine whether to take the x-ray PA or AP;" and "[f]ailed to properly administer the x-ray."
Plaintiffs’ counsel took the deposition of Darrell, who testified that she assessed Mrs. Gause upon first meeting her and continuing until Mrs. Gause had taken a few steps away from the wheelchair without assistance. Darrell testified that her assessment was based on her clinical judgment and observations of the patient, including the patient's mental status, and on more than 22 years of experience as an x-ray technician.
Following written discovery and depositions, Defendant filed a Motion for Summary Judgment. Two days later, Plaintiffs filed a Motion to Amend the Complaint to add a claim of medical negligence against Defendant. The proposed Amended Complaint alleged that, pursuant to Rule 9(j), the medical care and relevant records "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." The proposed Amended Complaint did not allege when the expert review had occurred.
Defendant's Motion for Summary Judgment and Plaintiffs’ Motion to Amend came on for hearing on 4 February 2016 in New Hanover Superior Court, Judge Charles Henry presiding. On 5 April 2016, the trial court entered an order dismissing Plaintiffs’ res ipsa loquitor claim, dismissing Plaintiffs’ negligence claim without prejudice, and denying Plaintiffs’ Motion to Amend.
Plaintiffs filed a Notice of Appeal.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. A trial court's grant of summary judgment receives de novo review on appeal, and evidence is viewed in the light most favorable to the non-moving party.
Sturgill v. Ashe Mem'l Hosp., Inc. , 186 N.C.App. 624, 626, 652 S.E.2d 302, 304 (2007) (citations and internal quotation marks omitted).
Plaintiffs argue that the trial court erred in dismissing their ordinary negligence claim based on their failure to comply with a pleading requirement applicable only to a medical malpractice claim. We disagree for two reasons. First, Plaintiffs’ discovery responses reveal allegations that Defendant was negligent in furnishing or failing to furnish professional services. Second, undisputed evidence produced in discovery shows that Mrs. Gause's injury stemmed from the x-ray technician's activities which required her to use clinical judgment. We conclude that Plaintiffs’ claim necessarily sounds in medical malpractice and not in ordinary negligence.
In North Carolina, the distinction between a claim of medical malpractice and ordinary negligence is significant for several reasons, including that medical malpractice actions cannot be brought without prior review of the medical care and relevant medical records by a person reasonably expected to qualify as an expert and to testify that the defendant provided substandard care. N.C. Gen. Stat. § 1A–1, Rule 9(j) (2015). Failure to allege compliance with Rule 9(j) in a complaint for medical malpractice requires dismissal. Id.
"Whether an action is treated as a medical malpractice action or as a common law negligence action is determined by our statutes[.]" Smith v. Serro , 185 N.C.App. 524, 529, 648 S.E.2d 566, 569 (2007). A medical malpractice action is defined in relevant part as "[a] civil action for damages for personal injury or death arising out of the furnishing or failure to furnish...
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