Sturgill v. Ashe Memorial Hosp., Inc.

• Decision Date: 06 November 2007
• Docket Number: No. COA06-1476.,COA06-1476.
• Citation: 652 S.E.2d 302
• Parties: Peggy Johnson STURGILL, Administratrix of the Estate of Charlie L. Johnson, Plaintiff v. ASHE MEMORIAL HOSPITAL, INC., Defendant.
• Court: North Carolina Court of Appeals

652 S.E.2d 302

Peggy Johnson STURGILL, Administratrix of the Estate of Charlie L. Johnson, Plaintiff v. ASHE MEMORIAL HOSPITAL, INC., Defendant.

No. COA06-1476.

Court of Appeals of North Carolina.

November 6, 2007.

Appeal by plaintiff from Order entered 29 August 2006 by Judge John O. Craig, III, in Ashe County Superior Court. Heard in the Court of Appeals 10 May 2007.

Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S. Johnson, North Wilkesboro, for the plaintiff-appellant.

Sharpless & Stavola, P.A., by Brenda S. McClearn, Greensboro, for defendant-appellee.

STROUD, Judge.

Plaintiff appeals from an order granting defendant's motion for summary judgment because of failure to have medical care reviewed by a certifying expert as required for a medical malpractice action by Rule 9(j) of the North Carolina Rules of Civil Procedure. The dispositive issue in this case is whether the use of restraints on a patient is a medical procedure. Because we conclude that the use of restraints in the case sub judice is a medical procedure, we affirm.

I. Background

"A medical assessment for the use of restraints can be delicate and complex, and as such, requires the application of clinical judgment." According to defendant's internal policy on restraints, the use of restraints requires an order written by a physician or a physician's assistant (PA). When a physician or PA is not immediately available, defendant's policy allows a nurse to initiate the use of restraints if "[b]ased on an appropriate assessment of the patient." An appropriate assessment "includes assessing the patient's medications, orthopedic diseases, neurological status . . . and other medical conditions."

If a nurse initiates the use of restraints, a physician is to be notified immediately if the nurse initiates restraints based on a significant change in the patient's condition. Otherwise, a physician or PA must be notified within one hour of a nurse's initiation of restraints. If the restraints are to remain on the patient, a physician or PA must provide a verbal or written order.

On or about 23 November 2003, Charlie L. Johnson ("decedent"), a seventy-six year-old man, was admitted to defendant hospital. At admission, decedent was disoriented, unable to walk, and suffering from a decreased level of consciousness. Decedent's cardiovascular, neurological and musculoskeletal systems were abnormal. Nurse Violet Barker conducted a nursing assessment of decedent upon his admission to defendant's facility and implemented defendant hospital's fall prevention plan (FPP), putting decedent's bedrails in the "up" position and placing restraints on decedent.

On 24 November 2003 defendant's employees removed the restraints from decedent. At 3:15 p.m. on 25 November 2003, defendant's employees found decedent out of bed and sitting in a chair. Around 7:00 p.m. defendant's employees noted that decedent was neurologically abnormal and suffering from confusion and dementia, and had a low oxygen saturation level and an irregular heartbeat. They assessed decedent as a fall risk "8" according to defendant's FPP. Doctor Clay was notified by phone and ordered nebulizer treatments, but no restraints were placed on decedent. Around 10:00 p.m. defendant's employees looked in on decedent and noted no distress. Decedent was not checked again until 11:30 p.m., when defendant's staff found decedent lying on the floor in his room. Decedent was unresponsive and had suffered head injuries, fractures to his right shoulder and elbow, and injury to his right knee. Decedent was transferred from defendant's facility to Wake Forest University Baptist Medical Center, where he remained until his death on 12 December 2003.

On 1 December 2005, Peggy Johnson Sturgill, Administratrix of the Estate of Charlie L. Johnson, filed a complaint against Ashe Memorial Hospital, Inc. Defendant answered on 18 December 2005. On 7 June 2006 defendant moved for summary judgment to dismiss the action pursuant to Rule 9(j) and Rule 56 of the North Carolina Rules of Civil Procedure on the grounds that plaintiff failed to have the medical care reviewed by a person qualified under Rule 702 of the Rules of Evidence who is willing to testify that the nursing and medical care did not comply with the applicable standard of practice. On 2 August 2006, an amended motion for summary judgment was filed by defendant to include supporting affidavits. On 3 August 2006, plaintiff submitted supporting affidavits. On 14 August 2006, Judge John O. Craig, III, heard the motion for summary judgment. On 29 August 2006, Judge Craig granted defendant's motion for summary judgment pursuant to Rule 56 and Rule 9(j) of the North Carolina Rules of Civil Procedure, dismissing the complaint with prejudice. Plaintiff appeals.

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." N.C. Gen.Stat. § 1A-1, Rule 56(c). 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. Stafford v. County of Bladen, 163 N.C.App. 149, 151, 592 S.E.2d 711, 713, disc. review denied and appeal dismissed, 358 N.C. 545, 599 S.E.2d 409 (2004).

III. Legal Analysis

Plaintiff contends the trial court erred by classifying her claim as one for medical malpractice and granting summary judgment for defendant on that basis. Plaintiff contends that defendant's motion for summary judgment should have been denied because the complaint alleges that the failure to implement defendant's FPP and failure to supervise decedent do not involve matters of specialized science or skill, therefore constitutes only a claim for ordinary negligence which does not require Rule 9(j) certification. Specifically, plaintiff contends that claims against a hospital do not necessarily allege medical malpractice, citing Duke University v. St. Paul Fire and Marine Ins. Co., 96 N.C.App. 635, 640-41, 386 S.E.2d 762, 766, disc. review denied, 326 N.C. 595, 393 S.E.2d 876 (1990) ("[N]egligence actions against health care providers may be based upon breaches of the ordinary duty of reasonable care where the alleged breach does not involve rendering or failing to render professional services requiring special skills.").

Plaintiff further contends that the case sub judice is analogous to cases in which this Court classified actions against health care providers as claims for ordinary negligence. To support this contention, plaintiff cites Lewis v. Setty, 130 N.C.App. 606, 503 S.E.2d 673 (1998) (moving a patient from an exam table to a wheelchair did not involve specialized knowledge or skill and as such did not constitute medical malpractice requiring Rule 9(j) certification), Taylor v. Vencor, Inc., 136 N.C.App. 528, 530, 525 S.E.2d 201, 203 ("observation and supervision of the plaintiff-nursing home resident, when she smoked in the designated smoking area, did not constitute an occupation involving specialized knowledge or skill"), disc. review denied, 351 N.C. 646, 543 S.E.2d 884 (2000), and Norris v. Rowan Memorial Hospital, Inc., 21 N.C.App. 623, 626, 205 S.E.2d 345, 348 (1974) (failing to raise the side rails on the patient's bed in violation of hospital rules and failing to give proper attention "did not involve the rendering or failure to render professional nursing or medical services requiring special skills").

Defendant responds that plaintiff's complaint only alleges that decedent's accident occurred as a result of being unrestrained. Defendant argues that because the use of restraints requires an order from a physician or PA based on clinical judgment, it is therefore a professional service, rendering plaintiff's complaint a claim for medical malpractice, not a claim for ordinary negligence. Accordingly, defendant contends that the complaint was properly dismissed for failure to obtain and include Rule 9(j) certification.

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 . . . [t]he 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).

As used in Rule 9(j), "the term `medical malpractice action' means 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 (2005) (emphasis added).

"Professional services" has been defined by this Court to mean 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.'" Smith v. Keator, 21 N.C.App. 102, 105-06, 203 S.E.2d 411, 415 (quoting Marx v. Hartford Accident & Indem. Co., 183 Neb. 12, 14, 157 N.W.2d 870, 872 (1968)), aff'd, 285 N.C. 530, 206 S.E.2d 203, appeal dismissed, 419 U.S. 1043, 95 S.Ct. 613, 42 L.Ed.2d 636 (1974).

In determining whether or not Rule 9(j) certification is required, the North Carolina Supreme Court has held that "pleadings have a binding effect as to the underlying theory of plaintiff's negligence claim." Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 102 (2002); see also Bratton v. Oliver, 141 N.C.App. 121, 125, 539 S.E.2d 40, 43 (2000) ("A party...