Wright v. Atl. Orthopedics, P.A.
| Decision Date | 05 August 2014 |
| Docket Number | No. COA14–136.,COA14–136. |
| Citation | 763 S.E.2d 928 (Table) |
| Court | North Carolina Court of Appeals |
| Parties | Wanda WRIGHT and James Wright, Plaintiffs, v. ATLANTIC ORTHOPEDICS, P.A., and New Hanover Regional Medical Center, Defendants. |
The Mitchell Law Group, by Ronnie M. Mitchell, and The Law Offices of William S. Britt, by William S. Britt, for plaintiff-appellants.
Walker, Allen, Grice, Ammons & Foy, L.L.P., by Jerry A. Allen, Jr ., and Louis (Trey) F. Foy, III, for defendant-appellees.
Where discovery reveals that a claim for medical negligence is not supported by the facts, a dismissal of the claim pursuant to Rule 9(j) is appropriate.
On 16 April 2009, plaintiff Wanda Wright underwent a total knee arthroplasty in her left knee. The arthroplasty was performed by Dr. Walter W. Frueh, an orthopedic surgeon at Atlantic Orthopedics, and the operation was conducted at New Hanover Regional Medical Center. Although the surgery was successful, a six-inch skin laceration was noted above Wright's left ankle when her surgical drapes were removed. Wright was subsequently referred to a plastic surgeon for the skin laceration. On 21 April, Wright was discharged from the hospital with instructions to continue rehabilitation and skin care services following her knee surgery and laceration. On 28 April, the plastic surgeon removed the sutures from Wright's skin laceration.
On 30 September 2011, Wright and her husband, plaintiff James Wright, filed a complaint against defendants Dr. Frueh, Atlantic Orthopedics, and New Hanover Regional Medical Center. The complaint alleged the following claims brought by Mrs. Wright: negligence against Dr. Frueh for causing the skin laceration ; claims against Atlantic Orthopedics based on respondeat superiorfor the negligence of its physician, Dr. Frueh; and claims against New Hanover Regional Medical Center based on respondeat superiorfor the negligence of its employees and staff in causing the skin laceration. A claim for loss of consortium was brought by Mr. Wright.
On 26 July 2011, Atlantic Orthopedics filed a motion for summary judgment pursuant to Rule 56, and a motion to dismiss pursuant to, inter alia,Rule 9(j). Thereafter, plaintiffs took a voluntary dismissal without prejudice as to defendants Dr. Frueh and New Hanover Regional Medical Center. Plaintiffs also made a motion to amend the pleadings to conform to the evidence.
On 22 August, the trial court granted Atlantic Orthopedics' motion to dismiss plaintiffs' complaint for failure to comply with the requirements of Rule 9(j); no formal ruling was made as to plaintiffs' motion to amend the pleadings. Plaintiffs appeal.
In their sole issue on appeal, plaintiffs contend the trial court erred in dismissing their complaint pursuant to Rule 9(j). We disagree.
Rule 9(j) unambiguously requires a trial court to dismiss a complaint if the complaint's allegations do not facially comply with the rule's heightened pleading requirements. Additionally, this Court has determined that even when a complaint facially complies with Rule 9(j) by including a statement pursuant to Rule 9(j), if discovery subsequently establishes that the statement is not supported by the facts, then dismissal is likewise appropriate. In considering whether a plaintiff's Rule 9(j) statement is supported by the facts, a court must consider the facts relevant to Rule 9(j) and apply the law to them. In such a case, this Court does not inquire as to whether there was any question of material fact, nor do we view the evidence in the light most favorable to the plaintiff. Rather, our review of Rule 9(j) compliance is de novo,because such compliance clearly presents a question of law....
Barringer v. Wake Forest Univ. Baptist Med. Ctr.,197 N.C.App. 238, 25556, 677 S.E.2d 465, 477 (2009) (citations and quotations omitted). Rule 9(j) “does not provide a procedural mechanism by which a defendant may file a motion to dismiss a plaintiff's complaint.” Id.at 255, 677 S.E.2d at 477. However, “[t]he Rules of Civil Procedure provide other methods by which a defendant may file a motion alleging a violation of Rule 9(j).” Id.; see also Thigpen v. Ngo,355 N.C. 198, 200, 558 S.E.2d 162, 164 (2002) (); Trapp v. Maccioli,129 N.C.App. 237, 239, 497 S.E.2d 708, 709 ().
Plaintiffs contend the trial court erred in granting Atlantic Orthopedics' motion to dismiss because plaintiffs' complaint met the pleading requirements of Rule 9(j). Plaintiffs gave the following statement of Rule 9(j) certification:
Pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure and prior to the filing of this Complaint, the care and treatment of Plaintiff Wanda Wright by the Defendants has been reviewed by a person who is expected to qualify under Rule 702 of the North Carolina Rules of Civil Procedure, and who is willing to testify that the Defendants' care and treatment of the Plaintiff Wanda Wright breached the appropriate standards of care, that they failed to use their best medical judgment and/or failed to use reasonable care and diligence applying their knowledge, training and skill to Plaintiff's care, proximately resulting in injury and damage to the Plaintiff, Wanda Wright.
Rule 9(j) of our Rules of Civil Procedure states:
Medical malpractice.—Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90–21.11(2) a. in failing to comply with the applicable standard of care under G.S. 90–21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry 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;
(2) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or
(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.
N.C. Gen.Stat. § 1A–1, Rule 9(j)(13) (2013).
We agree with plaintiffs that the statement in their complaint facially meets the requirements of Rule 9(j), as plaintiffs have pleaded the elements required by Rule 9(j)(a). However, a complaint may facially meet the requirements of Rule 9(j), yet may later fail Rule 9(j) based on discovery.
In its order granting Atlantic Orthopedics' motion to dismiss pursuant to Rule 9(j), the trial court noted that plaintiffs failed to comply with the requirements of Rule 9(j), and “that the motion should be allowed based on the deposition testimony of the plaintiffs' expert witness, Dr. Staley Jackson[.]”
Dr. Jackson, plaintiffs' expert witness, testified during his deposition that, in his opinion, Dr. Frueh had not Upon further questioning, Dr. Jackson stated that, based on his review of defendants' deposition testimony and plaintiff's medical records, the only person who was likely negligent in causing plaintiff's skin laceration was the physician's assistant who removed plaintiff's surgical drapes.
We agree with the trial court that plaintiffs have failed to meet the requirements of Rule 9(j), as the deposition testimony of plaintiffs' expert witness, Dr. Jackson, clearly indicates that he did not feel the evidence demonstrated negligence on the part of Dr. Frueh or Atlantic Orthopedics. Instead, Dr. Jackson's deposition supported a finding of possible negligence only against Dr. Frueh's physician's assistant. Thus, as the deposition testimony of plaintiffs' expert witness demonstrates that plaintiffs' complaint was not supported by the facts, a dismissal pursuant to Rule 9(j) was appropriate. See Robinson v. Duke Univ. Health Sys.,–––N.C.App. ––––, ––––, 747 S.E.2d 321, 328 (2013) .
Plaintiffs also argue that because an affidavit by Dr. Jackson...
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