Moore v. Pitt County Memorial Hosp.

• Decision Date: 22 February 2001
• Docket Number: No. 4:00-CV-148-H(3).,4:00-CV-148-H(3).
• Citation: 139 F.Supp.2d 712
• Parties: Adriann MOORE, Plaintiff, v. PITT COUNTY MEMORIAL HOSPITAL and The National Red Cross, Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

139 F.Supp.2d 712

Adriann MOORE, Plaintiff, v. PITT COUNTY MEMORIAL HOSPITAL and The National Red Cross, Defendants.

No. 4:00-CV-148-H(3).

United States District Court, E.D. North Carolina, Eastern Division.

February 22, 2001.

W. Dudley Whitley, III, Battle, Winslow, Scott & Wiley, Rocky Mount, NC, W. Darrell Whitley, Denton, NC, for plaintiffs.

C. David Creech, Harris, Shields & Creech, New Bern, NC, Walter G. Merritt, Harris, Shields, Creech & Ward, New Bern, NC, Bradley M. Risinger, Smith, Helms, Mulliss & Moore, Raleigh, NC, for defendants.

ORDER

MALCOLM J. HOWARD, District Judge.

This case is before the court on Pitt County Memorial Hospital's Motion to Dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to file a medical affidavit under Rule 9(j) of the North Carolina Rules of Civil Procedure. The parties have submitted briefs in support of their positions. This matter is ripe for adjudication.

STATEMENT OF FACTS

Plaintiff Adriann Moore filed this case in Pitt County Superior Court alleging negligence, res ipsa loquitur, and failure to warn against Pitt County Memorial Hospital ("PCMH") and the National American Red Cross ("Red Cross"). The facts allege that on May 8, 1997, plaintiff received a blood transfusion at PCMH with blood obtained from the Red Cross. Plaintiff states that as a result of the transfusion administered at PCMH, she contracted Hepatis C. Red Cross removed this case to federal court on September 19, 2000.

PCMH seeks dismissal of claims asserted against it because plaintiff's complaint failed to assert that "the medical care ha[d] been reviewed by a person who is reasonably expected to qualify as an expert witness" as required by Rule 9(j) of the North Carolina Rules of Civil Procedure for medical malpractice actions.

Plaintiff first asserts that the current action does not allege a medical malpractice action because it is asserted against a hospital. The court disagrees. A "medical malpractice action" is defined as a civil action for damages "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 (emphasis added). Unlike the cause of action asserted against a blood bank in Doe v. American Nat'l Red Cross, 798 F.Supp. 301 (E.D.N.C.1992), the North Carolina legislature has specifically included hospitals within the definition of "health care providers." Thus a medical malpractice action may arise between a hospital and patient. See Keith v. Northern Hosp. Dist., 129 N.C.App. 402, 499 S.E.2d 200, 202 (1998) (dismissing lawsuit against hospital as medical malpractice claim failed to include certification under Rule 9(j)); see also Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 472 S.E.2d 778, 781 (1996) ("The General Assembly ... has treated hospitals and other specified institutional health care providers identically with other health care professionals. Had it intended differential treatment for hospitals in the defense of medical malpractice claims, it could have so provided.").

Plaintiff next asserts that her claims allege ordinary negligence rather than negligence under medical...