Robinson v. Duke Univ. Health Sys., Inc.

• Decision Date: 20 August 2013
• Docket Number: No. COA12–1239.,COA12–1239.
• Citation: 747 S.E.2d 321
• Parties: Linda M. ROBINSON and Frank Robinson, Plaintiffs, v. DUKE UNIVERSITY HEALTH SYSTEMS, INC. d/b/a Duke University Medical Center; Duke University Affiliated Physicians, Inc.; Christopher Mantyh, MD; Erich S. Huang, MD; Mayur B. Patel, MD; Lewis Hodgins, MD; Jane and John Doe, Defendants.
• Court: North Carolina Court of Appeals

747 S.E.2d 321

Linda M. ROBINSON and Frank Robinson, Plaintiffs,

v.DUKE UNIVERSITY HEALTH SYSTEMS, INC. d/b/a Duke University Medical Center; Duke University Affiliated Physicians, Inc.; Christopher Mantyh, MD; Erich S. Huang, MD; Mayur B. Patel, MD; Lewis Hodgins, MD; Jane and John Doe, Defendants.

No. COA12–1239.

Court of Appeals of North Carolina.

Aug. 20, 2013.

Appeal by plaintiffs from judgment entered 15 June 2012 by Judge Orlando F. Hudson in Durham County Superior Court. Heard in the Court of Appeals 8 May 2013.

Willcox, Buyck & Williams, P.A., by Reynolds Williams, pro hac vice; and Thomas & Farris, Wilson, by Albert S. Thomas and Allen G. Thomas, for plaintiff appellants.

McGuireWoods LLP, Raleigh, by Mark E. Anderson, Heather R. Wilson, and Monica E. Webb, for defendant appellees.

McCULLOUGH, Judge.

Plaintiffs Linda M. Robinson (“Robinson”) and her husband, Frank Robinson (collectively, “plaintiffs”) appeal from an order of the trial court granting summary judgment in favor of defendants Duke University Health Systems, Inc. d/b/a Duke University Medical Center (“DUHS”); Duke University Affiliated Physicians, Inc. (“DUAP”); Christopher Mantyh, M.D. (“Dr. Mantyh”); Erich S. Huang, M.D. (“Dr. Huang”); Mayur B. Patel, M.D. (“Dr. Patel,” collectively with the aforementioned defendants, “defendants”); and Lewis Hodgins, M.D. (“Dr. Hodgins”), and dismissing their medical malpractice action with prejudice. On appeal, plaintiffs contend the trial court erred in granting summary judgment in favor of defendants because (1) their complaint stated a cause of action for medical negligence under the common law theory of res ipsa loquitur, and therefore their complaint complied with Rule 9(j)(3) of the North Carolina Rules of Civil Procedure for medical malpractice actions; and (2) they presented evidence establishing each and every element of a medical negligence claim, thereby creating a genuine issue of fact for trial. After careful review, we (1) affirm the trial court's order dismissing plaintiffs' action against defendants DUAP, Dr. Patel, and Dr. Hodgins and dismissing plaintiffs' punitive damages claim; (2) vacate the trial court's order granting summary judgment in favor of defendants on the basis of plaintiffs' compliance with Rule 9(j); and (3) reverse the trial court's award of summary judgment in favor of defendants Dr. Mantyh, Dr. Huang, and DUHS. We remand the matter to the trial court for further proceedings consistent with this opinion.

I. Background

On 12 March 2008, Robinson was admitted to Duke University Medical Center with a diagnosis of severe constipation predominant irritable bowel syndrome and colonic inertia. After considering her treatment options, Robinson elected to undergo a subtotal/abdominal colectomy, a surgical procedure to remove a portion of the small intestine and reattach the intestine to the rectum using a surgical stapler. Dr. Mantyh, Chief of Gastrointestinal and Colorectal Surgery at the hospital, assisted by Dr. Huang, a general surgery resident at the hospital, performed Robinson's surgery.

On the day following her surgery, Robinson reported loose stool in her bed, and overnight, she reported bloody fluid passing from her vagina. Upon evaluation, it was discovered that Robinson's small intestine had been connected to her vagina, rather than to her rectum, during her surgical procedure. As a result, on 14 March 2008, Dr. Mantyh and Dr. Huang performed a second surgery on Robinson to correct the misconnection. The second surgery was successful in repairing the communication between Robinson's small intestine and her vagina. Robinson was subsequently discharged from the hospital on 27 March 2008.

On 29 April 2008, Robinson presented to Dr. Mantyh for follow-up outpatient care, at which time she had new complaints including difficulty speaking, left-sided weakness, erratic hand movements, and blurry vision. Robinson reported that her symptoms began following her second surgery and continued to worsen with time. Dr. Mantyh ordered that Robinson be admitted to the hospital, where she was diagnosed with conversion disorder, a psychiatric disorder related to recent conflict or stress. Robinson was subsequently discharged from the hospital on 2 May 2008.

On 10 March 2011, plaintiffs filed a complaint for medical negligence against all defendants. Plaintiffs' complaint relies on the common law theory of res ipsa loquitur. Plaintiffs' complaint also sought punitive damages. On 19 April 2011, all defendants moved to dismiss plaintiffs' action pursuant to Rules 9(j), 12(b)(2), 12(b)(5), 12(b)(6), and 41(b) of the North Carolina Rules of Civil Procedure. On 1 July 2011, the trial court denied defendants' motion to dismiss as to all defendants except Dr. Hodgins, as to whom plaintiffs' action was dismissed with prejudice. Defendants then filed an answer to plaintiffs' complaint on 26 July 2011.

The parties proceeded to conduct discovery, during which plaintiffs identified Joshua Braveman, M.D. (“Dr. Braveman”), an experienced colorectal surgeon, as an expert to testify regarding the care Robinson received from defendants during her surgeries. On 27 April 2012, defendants filed a motion for summary judgment, asserting that (1) plaintiffs had failed to comply with Rule 9(j)(1) of the North Carolina Rules of Civil Procedure for medical malpractice claims, (2) the doctrine of res ipsa loquitur did not apply to plaintiffs' action, and (3) plaintiffs could not forecast evidence to satisfy each and every element of their medical negligence claim. The trial court held a hearing on defendants' motion on 12 June 2012, and a written order granting summary judgment in favor of defendants and dismissing plaintiffs' action with prejudice was entered by the trial court on 15 June 2012. On 16 July 2012, plaintiffs entered timely written notice of appeal from the trial court's 15 June 2012 order.¹

On 12 September 2012, defendants filed a motion with the trial court pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure seeking an advisory opinion and/or a supplemental order with findings of fact and conclusions of law to aid our review of plaintiffs' present appeal. Defendants then moved this Court for a stay of appellate proceedings until the trial court could consider their Rule 60(b) motion. This Court granted defendants' motion on 5 November 2012, ordering the case remanded to the trial court for an evidentiary hearing and the entry of findings of fact and conclusions of law thereon. Thereafter, on 14 November 2012, the trial court held a hearing and entered a “Supplemental Order and/or AdvisoryOpinion,” including findings of fact and conclusions of law supporting the grant of summary judgment in favor of defendants.

II. Standard of Review

“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.’ ” Forbis v. Neal, 361 N.C. 519, 523–24, 649 S.E.2d 382, 385 (2007) (quoting N.C. Gen.Stat. § 1A–1, Rule 56(c)). “The trial court must consider the evidence in the light most favorable to the non-moving party.” Crocker v. Roethling, 363 N.C. 140, 142, 675 S.E.2d 625, 628 (2009). “The trial court may not resolve issues of fact and must deny the motion if there is a genuine issue as to any material fact.” Forbis, 361 N.C. at 524, 649 S.E.2d at 385. We review a trial court's order granting summary judgment de novo. Id. “If the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.” Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989).

III. Compliance with Rule 9(j)

A. Trial Court's Inconsistent Rulings on Rule 9(j) Compliance

We first address plaintiffs' contention that the trial court's summary judgment order overruled its previous order denying defendants' motion to dismiss on the issue of plaintiffs' compliance with Rule 9(j).

On 19 April 2011, defendants moved to dismiss plaintiffs' action pursuant to Rules 9(j), 12(b)(2), 12(b)(5), 12(b)(6), and 41(b) of the North Carolina Rules of Civil Procedure. Defendants argued that plaintiffs' complaint failed to comply with Rule 9(j)(1) and did not meet “the well [-]established pleading requirements under North Carolina law so as to establish negligence under the existing common law doctrine of res ipsa and therefore fails to fall within the exception set forth in Rule 9(j)(3).” In their memorandum supporting their motion to dismiss, defendants presented extensive argument contending that the doctrine of res ipsa loquitur does not apply to plaintiffs' action because (1) plaintiffs failed to allege either that a surgical instrument or foreign object was left in Robinson's body following surgery or that her injury was to an area far away from and completely unrelated to the zone of surgery; (2) plaintiffs alleged the proximate cause of Robinson's injury in their complaint, rather than alleging that no proof of the cause of Robinson's injury is available; (3) laypersons lack the specialized medical knowledge necessary to infer that the injury Robinson sustained during or as a result of her colectomy procedure is a type that does not ordinarily occur in the absence of negligence; and (4) plaintiffs failed to allege that the instrumentality causing the alleged injury was under defendants' exclusive control.

On 1 July 2011, Judge Robert Hobgood (“Judge Hobgood”) denied defendants' motion to dismiss. In his written order, Judge Hobgood noted the parties' arguments as follows:

The argument of all Defendants is that the Plaintiffs have failed to abide by Rule 9(j) of the North Carolina Rules of Civil Procedure because the Complaint contains no allegation that an expert witness has been appropriately consulted or identified and described as required by Rule 9(j)(1). Plainti...