Locklear v. Cummings

• Decision Date: 16 May 2017
• Docket Number: No. COA16-1015,COA16-1015
• Citation: 253 N.C.App. 457,801 S.E.2d 346
• Court: North Carolina Court of Appeals
• Parties: Marjorie C. LOCKLEAR, Plaintiff, v. Matthew S. CUMMINGS, M.D., Southeastern Regional Medical Center, Duke University Health System and Duke University Affiliated Physicians, Inc., Defendants.

253 N.C.App. 457

801 S.E.2d 346

Marjorie C. LOCKLEAR, Plaintiff,

v.Matthew S. CUMMINGS, M.D., Southeastern Regional Medical Center, Duke University Health System and Duke University Affiliated Physicians, Inc., Defendants.

No. COA16-1015

Court of Appeals of North Carolina.

Filed: May 16, 2017

Law Offices of Walter L. Hart, IV, Charlotte, by Walter L. Hart, IV, for Plaintiff-Appellant.

Cranfill Sumner & Hartzog LLP, Raleigh, by Jaye E. Bingham-Hinch, David D. Ward, and Katherine Hilkey-Boyatt, for Defendant-Appellees Matthew S. Cummings, M.D., Duke University Health System, and Duke University Affiliated Physicians, Inc.

Brotherton Ford Berry & Weaver, PLLC, Greensboro, by Robert A. Ford and Demetrius Worley Berry, for Defendant-Appellee Southeastern Regional Medical Center.

HUNTER, JR., Robert N., Judge.

Marjorie C. Locklear ("Plaintiff") appeals from an order dismissing her complaint against Defendants Dr. Matthew Cummings, Duke University Health System, and Duke University Affiliated Physicians (collectively "Duke Defendants") under Rule 9(j), as well as the denial of her motion to amend under Rule 15(a). Plaintiff also appeals from an order dismissing her complaint against Defendant Southeastern Regional Medical Center ("Southeastern") under Rules 9(j) and 12(b)(5), as well as the denial of her motion to amend under Rule 15(a). After review, we reverse in part and affirm in part.

I. Factual and Procedural Background

On 30 July 2015, one day before the statute of limitations expired, Plaintiff filed a complaint against Defendants, seeking monetary damages for medical negligence. The complaint alleges the following narrative.

On 31 July 2012, Dr. Cummings performed cardiovascular surgery on Plaintiff. During surgery, Dr. Cummings failed to monitor and control Plaintiff's body and was distracted. Additionally, he did not position himself in close proximity to Plaintiff's body. While Plaintiff "was opened up and had surgical tools in her[,]" Plaintiff fell off of the surgical table. Plaintiff's head and the front of her body hit the floor. As a result of the fall, Plaintiff suffered a concussion, developed double vision, injured her jaw, displayed bruises, and was "battered" down the left side of her body. Plaintiff also had "repeated" nightmares about falling off the surgical table. Duke Defendants and Defendant Southeastern acted negligently by retaining physicians, nurses, and other healthcare providers who allowed Plaintiff's accident to occur.

On 9 September 2015, private process server, Richard Layton, served Duke Defendants by delivering Plaintiff's civil cover sheet, summons, and complaint to Margaret Hoover, a registered agent for Duke Defendants. On 19 September 2015, Gary Smith, Jr. served Plaintiff's summons and complaint on Dr. Cummings. Lastly, on 24 September 2015, Smith served Plaintiff's summons and complaint on Southeastern by delivering the papers to C. Thomas Johnson, IV, Southeastern's Chief Financial Officer.¹

On 10 November 2015, Dr. Cummings and Duke Defendants filed a joint answer and motion to dismiss. Dr. Cummings and Duke Defendants denied the allegations in Plaintiff's complaint and asserted defenses under Rules 12(b)(6) and 9(j) of the North Carolina Rules of Civil Procedure.

On 23 November 2015, Southeastern filed an answer and denied Plaintiff's allegations. Southeastern moved to dismiss Plaintiff's compliant under Rules 12(b)(4), 12(b)(5), 12(b)(6), and 9(j) of the North Carolina Rules of Civil Procedure. On 29 December 2015, Johnson filed an affidavit. In the affidavit, Johnson swore he was the Chief Financial Officer of Southeastern, but not the corporation's registered agent.

On 11 January 2016, the trial court held a hearing on all the Defendants’ pending motions. During argument, Plaintiff requested "leave of the Court to amend [the] complaint so that there's no controversy hereafter." Plaintiff moved under Rule 60, not Rule 15(a), because "Rule 60 ... allows a mere clerical order—error to be corrected." Then, Plaintiff requested leave "pursuant to Rules 15(a) and 60."

On 2 February 2016, the trial court granted Dr. Cummings's and Duke Defendants’ motion to dismiss pursuant to Rule 9(j) and denied Plaintiff's motion to amend under Rule 15(a). On 4 February 2016, the trial court granted Southeastern's motion to dismiss pursuant to Rules 9(j) and 12(b)(5) and denied Plaintiff's motion to amend under Rule 15(a). Plaintiff filed timely notice of appeal.

II. Standard of Review

The standard of review of a Rule 12(b)(6) motion to dismiss is de novo . Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4 (2003). Likewise, a trial court's order dismissing a complaint pursuant to Rule 9(j) is reviewed de novo on appeal because it is a question of law. Barringer v. Wake Forest Univ. Baptist Med. Ctr. , 197 N.C.App. 238, 256, 677 S.E.2d 465, 477 (2009) (citation omitted).

We review the trial court's dismissal under Rule 12(b)(5) de novo . New Hanover Cty. Child Support Enforcement ex rel. Beatty v. Greenfield , 219 N.C.App. 531, 533, 723 S.E.2d 790, 792 (2012) (citation omitted).

III. Analysis

A. Motions to Dismiss under Rule 12(b)(6) and Rule 9(j)

Plaintiff argues the trial court erred in dismissing her complaint against all the Defendants under Rule 12(b)(6) and Rule 9(j). Because Plaintiff's claims sound in ordinary negligence, not medical malpractice, we agree.

"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 Rule 9(j) compliance]." Gause v. New Hanover Reg'l Med. Ctr. , ––– N.C.App. ––––, ––––, 795 S.E.2d 411, 415 (2016) (citing N.C. Gen. Stat. § 1A–1, Rule 9(j) (2015) ).

"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). N.C. Gen. Stat. § 90–21.11(2)(a) defines a 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 ... health care by a health care provider." N.C. Gen. Stat. § 90–21.11(2)(a). "The term ‘professional services’ is not defined by our statutes but has been defined by the Court 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.’ " Gause , ––– N.C.App. at ––––, 795 S.E.2d at 415 (quoting Sturgill v. Ashe Mem'l Hosp., Inc. , 186 N.C.App. 624, 628, 652 S.E.2d 302, 305 (2007) ). "Our courts have classified as medical malpractice those claims alleging injury resulting from activity that required clinical judgment and intellectual skill." Id. at ––––, 795 S.E.2d at 415 (citation omitted). "Our courts have classified as ordinary negligence those claims alleging injury caused by acts and omissions in a medical setting that were primarily manual or physical and which did not involve a medical assessment or clinical judgment." Id. at ––––, 795 S.E.2d at 415 (citation omitted).

In cases of a plaintiff falling, the deciding factor is whether the decisions leading up to the fall required clinical judgment and intellectual skill. Where the complaint alleges or discovery shows the fall occurred because medical personnel failed to properly use restraints, the claim sounded in medical malpractice. Sturgill , 186 N.C.App. at 628–30, 652 S.E.2d 302 ; Alston v. Granville Health Sys. , 221 N.C.App. 416, 421, 727 S.E.2d 877, 881 (2012) (" Alston II "). However, when a complaint alleged the plaintiff fell of a gurney in an operating room while unconscious, this Court held the claim sounded in ordinary negligence, not medical malpractice.

Alston v. Granville Health Sys. , No. 09-1540, 207 N.C.App. 264, 2010 WL 3633738 (unpublished) (Sept. 21, 2010) (" Alston I ").² The question is whether the actions leading to the fall require specialized skill or clinical judgment. Gause , ––– N.C.App. at ––––, 795 S.E.2d at 415 (citations omitted).

In her complaint, Plaintiff states, inter alia :

23. That, at all times relevant to this action, Defendant Cummings ... held himself out to possess the special skills and knowledge possessed by other physicians practicing in the specialized field of internal medicine, cardiology, and cardiovascular surgery.

24. That the medical care and treatment rendered to Plaintiff by Defendant Cummings on July 31, 2012 has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence, and who is willing to testify that the medical care rendered to Plaintiff fell below the applicable standard of care.

25. That the medical care and treatment of Defendant Cummings has been reviewed by a person that Plaintiff will seek to have qualified by an expert witness under Rule 702 of the North Carolina Rules of Evidence, and who is willing to testify that the medical care rendered to Plaintiff fell below the applicable standard of care.

...

27. That the times, places, and on the occasion herein in question, Defendant Cummings was negligent, and his acts and omissions of negligence include, but are not limited to:

a) In failing to use his best professional judgment and skill while operating on the Plaintiff; b) In failing to properly control Plaintiff's body during the surgery;

c) In failing to properly monitor Plaintiff's body during surgery;

d) In allowing himself to be distracted;

e) In not positioning himself in close proximity to Plaintiff's body; f) In not properly supervising and directing the proximity of nurses and other staff in relation to Plaintiff;

g) In allowing Plaintiff to fall off the operating table;

h) In failing to use good judgment, reasonable skill, and diligence in the

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