Summary
alleging rehabilitation facility employees dropped patient while moving him from bed to shower chair
Summary of this case from Parker v. BurrisOpinion
No. COA12–1271.
2013-07-2
Tracey C. BARRETT, Plaintiff v. SSC CHARLOTTE OPERATING COMPANY, LLC, and Savaseniorcare d/b/a Brian Center Health and Rehabilitation/Charlotte, Caryn Whitley and Helen McDougald, Defendants.
Ted A. Greve & Associates, by Justin L. Lowenberger, for Plaintiff. Wilkins Tipton, P.A., by Bradley K. Overcash, for Defendants.
Appeal by plaintiff from order entered 12 March 2012 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 13 March 2013. Ted A. Greve & Associates, by Justin L. Lowenberger, for Plaintiff. Wilkins Tipton, P.A., by Bradley K. Overcash, for Defendants.
ERVIN, Judge.
Plaintiff Tracy C. Barrett appeals from an order dismissing the complaint that he filed against Defendants, which order was predicated on the grounds that Plaintiff's claim was barred by the applicable statute of limitations and that N.C. Gen.Stat. § 1A–1, Rule 41 did not operate to extend the relevant limitations period due to a defect in Plaintiff's N.C. Gen.Stat. § 1A–1, Rule 9(j) certification. After careful consideration of Plaintiff's challenges to the trial court's order in light of the record and the applicable law, we conclude that Plaintiff's claim was not, in fact, barred by the applicable statute of limitations, that the trial court's order should be reversed, and that this case should be remanded to the Mecklenburg County Superior Court for further proceedings not inconsistent with this opinion.
Although the spelling of Plaintiff's name in the caption is consistent without our practice of using the parties' names as they appear in the order or judgment from which the appeal
I. Factual Background
On 14 October 2006, Plaintiff was admitted to the Brian Center, a long-term nursing and rehabilitation facility, for rehabilitation following a stroke. During his stay at the Brian Center, Plaintiff required assistance from nurses and aides in order to engage in significant movement, including getting in and out of bed. On 23 November 2006, a pair of on-duty “nurses, aides or workers,” Defendants Caryn Whitley and Helen McDougald, attempted to move Plaintiff from his bed to a shower chair, dropping him in the process. As a result of this fall, Plaintiff sustained a spinal cord injury and had to undergo surgery.
On 28 September 2009, Plaintiff filed a complaint seeking an award of damages from the workers who dropped him and certain entities that he believed to be owners of the Brian Center on the basis of allegations sounding in “negligence,” vicarious liability, negligent hiring, and negligent training and supervision. Plaintiff's complaint included a certification pursuant to N.C. Gen.Stat. § 1A–1, Rule 9(j). On 22 July 2010, Plaintiff voluntarily dismissed without prejudice the claims that he had asserted against certain of the defendants named in his initial complaint pursuant to N.C. Gen.Stat. § 1A–1, Rule 41, so that only those defendants named in this case remained as parties.
On 20 December 2010, Defendants moved for summary judgment in their favor on the grounds that Plaintiff had failed to properly designate a medical expert prepared to testify in support of his allegations. In his initial response to the first set of interrogatories propounded pursuant to N.C. Gen.Stat. § 1A–1, Rule 9(j) by Defendant SSC Charlotte Operating Co., LLC, Plaintiff refused to provide any information concerning his medical expert on the grounds that the claims which he had asserted sounded in ordinary, rather than medical, negligence. In an amended response to Defendant SSC Charlotte Operating's interrogatories, Plaintiff stated that Dr. Jill Ellen Thompson, a neuroradiologist and former nurse, had reviewed Plaintiff's claim in 2008 and had opined that the caregivers at the Brian Center failed to comply with the applicable standard of care. On 7 January 2011, Defendants filed an amended summary judgment motion in which they asserted that Dr. Thompson was not qualified to provide expert testimony in support of Plaintiff's allegations. On 14 January 2011, Plaintiff voluntarily dismissed his claims against the remaining defendants without prejudice pursuant to N.C. Gen.Stat. § 1A–1, Rule 41.
On 30 September 2011, Plaintiff refiled his action against Defendants. In his refiled complaint, Plaintiff asserted claims sounding in “negligence,” vicarious liability and negligent hiring and supervision and included a certification pursuant to N.C. Gen.Stat. § 1A–1, Rule 9(j). On 29 November 2011, Defendants filed a motion seeking the dismissal of Plaintiff's complaint pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) on the grounds that the three-year statute of limitations and the four-year statute of repose had expired and that Plaintiff had failed to comply with the provisions of N.C. Gen.Stat. § 1A–1, Rule 9(j). On 12 March 2012, the trial court entered an order dismissing Plaintiff's complaint with prejudice on the grounds that the applicable statute of limitations had run and that “N.C. Gen.Stat. § 1A–1, Rule 41, does not serve to extend or toll the statute of limitations due to what [it found] to be a defective N.C. Gen.Stat. § 1A–1, Rule 9(j) certification after the conduct of N.C. Gen.Stat. § 1A–1, Rule 9(j) discovery.” Plaintiff noted appeal to this Court from the trial court's order.
Defendants have requested this Court to dismiss Plaintiff's appeal for alleged violations of N.C.R.App. P. 11(c) stemming from Plaintiff's apparent failure to request judicial settlement of the record on appeal in a timely manner and to obtain the entry of an order settling the record on appeal in a timely manner in reliance upon this Court's decision in Groves v. Cmty. Hous. Corp., 144 N .C.App. 79, 548 S.E.2d 535 (2001). However, similar to our decision with respect to this issue in Groves, we exercise our authority under N.C.R.App. P. 2 to overlook these non-jurisdictional rule violations and reach the merits of Plaintiff's appeal given that the violations upon which Defendants rely have not hampered our ability to engage in appropriate appellate review or materially prejudiced Defendants' ability to defend the trial court's order on appeal. Groves, 144 N.C.App. at 83, 548 S.E.2d at 538;see also Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008) (stating that “a party's failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal”). However, we do admonish Plaintiff to strictly adhere to all applicable provisions of the North Carolina Rules of Appellate Procedure in future litigation.
II. Legal Analysis
The trial court dismissed Plaintiff's action for failure to state a claim for which relief could be granted on the theory that the applicable statute of limitations had run with respect to Plaintiff's claims. This determination was necessarily based upon a conclusion that Plaintiff's action was one for medical malpractice; that Plaintiff failed to comply with the requirements of N.C. Gen.Stat. § 1A–1, Rule 9(j) in the initial case between the parties given that Plaintiff could not reasonably expect Dr. Thompson to qualify as an expert due to the fact that she was a neuroradiologist and had not practiced in or devoted a significant portion of her time to the nursing profession for a considerable period of time; and that Plaintiff's failure to comply with N.C. Gen.Stat. § 1A–1, Rule 9(j) during the initial case deprived Plaintiff of the ability to take advantage of the one year period for refiling a voluntarily dismissed complaint as set out in N.C. Gen.Stat. § 1A–1, Rule 41(a)(1). McKoy v. Beasley, 213 N.C.App. 258, ––––, 712 S.E.2d 712 (stating that “the defective original complaint cannot be rectified by a dismissal followed by a new complaint complying with [ N.C. Gen.Stat. § 1A–1,]Rule 9(j), where the second complaint is filed outside of the applicable statute of limitations”), appeal dismissed and disc. review denied,365 N.C. 352, 718 S.E.2d 150 (2011); Ford v. McCain, 192 N.C.App. 667, 676, 666 S .E.2d 153 (2008) (stating that, “[i]f discovery establishes that plaintiff's first certification had no factual basis, then defendant may move for summary judgment dismissing plaintiff's claims under [ N .C. Gen.Stat. § 1A–1,]Rule 9(j) and expiration of the statute of limitations, as was done in Robinson [v. Entwhistle], 132 N.C.App. [519,] 523, 512 S.E.2d [438,] 441 [,disc. review denied, 350 N.C. 595, 537 S.E.2d 482 (1999) ] ). We do not find this logic persuasive.
Defendants initially sought dismissal of Plaintiff's refiled complaint for non-compliance with N.C. Gen.Stat. § 1A1, Rule 9(j) based upon what appears to have been a typographical error in Plaintiff's certification, which stated that an expert chiropractic practitioner was willing to testify on Plaintiff's behalf. However, Plaintiff corrected that error to indicate that he was relying on a review conducted and testimony to be provided by Dr. Thompson. As a result, Defendants have candidly acknowledged in both this Court and the trial court that Plaintiff relied on testimony from Dr. Thompson and focused their challenge to the extent to which Plaintiff had properly complied with N.C. Gen.Stat. § 1A–1, Rule 9(j) on their contention that, since Dr. Thompson was a neuroradiologist, she was “not someone that would be reasonably expected to be able to testify as to nursing standards in a nursing home negligence case.”
A. Standard of Review
Although Defendants sought dismissal of Plaintiff's refiled complaint pursuant to N.C. Gen.Stat. § 1A1, Rule 12(b)(6), the parties submitted materials in addition to the allegations in the refiled complaint during the consideration of Defendants' dismissal motion. As a result, the trial court's order should be understood as a decision that summary judgment should be granted in Defendants' favor. N.C. Gen.Stat. § 1A–1, Rule 12(b) (providing, in pertinent part, that, “[i]f, on a motion asserting the defense numbered [12(b)(6) ], to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment”). In reviewing an order granting summary judgment, our task is to “determine, on the basis of the materials presented to the trial court, whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law.” Coastal Plains. Utils., Inc. v. New Hanover Cty., 166 N.C.App. 333, 340, 601 S.E.2d 915, 920 (2004) (citing Oliver v. Roberts, 49 N.C.App. 311, 314, 271 S.E.2d 399, 401 (1980), cert. denied,––– N.C. ––––, 276 S.E.2d 283 (1981)). A trial court's decision to grant a summary judgment motion is reviewed in this Court on a de novo basis. Va. Elec. & Power Co. v. Tillett, 80 N.C.App. 383, 385, 343 S.E.2d 188, 191,cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986). Similarly, we review trial court orders resolving issues stemming from a party's alleged failure to comply with N.C. Gen.Stat. § 1A–1, Rule 9(j) on a de novo basis “because such compliance ‘clearly presents a question of law.’ “ Smith v. Serro, 185 N.C.App. 524, 527, 648 S.E.2d 566, 568 (2007) (quoting Phillips v. A Triangle Women's Health Clinic, 155 N.C.App. 372, 376, 573 S.E.2d 600, 603 (2002), aff'd,357 N.C. 576, 597 S.E.2d 669 (2003)). As a result, “ ‘when ruling on [a motion to dismiss pursuant to [N.C. Gen.Stat. § 1A–1,]Rule 9(j) ], a court must consider the facts relevant to [N.C. Gen.Stat. § 1A–1,]Rule 9(j) and apply the law to them.’ “ McGuire v. Riedle, 190 N.C.App. 785, 787, 661 S.E.2d 754, 757 (2008) (quoting Phillips, 155 N.C.App. at 376, 573 S.E.2d at 603) (first alteration in original). Finally, when no disputed factual issues need to be resolved, issues regarding the application of a statute of limitations or statute of repose are questions of law, which this Court reviews de novo. Udzinski v. Lovin, 159 N.C.App. 272, 273, 583 S.E.2d 648, 649 (2003), aff'd, 358 N.C. 534, 597 S.E.2d 703 (2004).
B. Nature of Plaintiff's Claim
In his first challenge to the trial court's order, Plaintiff argues that he was not required to comply with the provisions of N.C. Gen.Stat. § 1A–1, Rule 9(j) in his initial or refiled complaints on the grounds that the claims that he sought to assert against Defendants involved allegations of ordinary negligence rather than medical malpractice. We agree.
According to N.C. Gen.Stat. § 1A–1, Rule 9(j), “[a]ny complaint alleging medical malpractice by a health care provider” which is not asserted in reliance upon a res ipsa loquitur theory must state that the medical records available to the plaintiff either (1) “have been reviewed by a person who is reasonably expected to qualify as an expert witness under [N.C. Gen.Stat. 8C–1,] Rule 702 ... and who is willing to testify that the medical care did not comply with the applicable standard of care” or (2) “by a person that the complainant will seek to have qualified as an expert witness by motion under [N.C. Gen.Stat. § 8C–1,] Rule 702(e).” However, the requirements of N.C. Gen.Stat. § 1A–1, Rule 9(j) are, given the plain language of the relevant statutory provision, only applicable to “complaint[s] alleging medical malpractice by a health care provider pursuant to [N.C. Gen.Stat. § ] 90–21.11(2)a.”
A medical malpractice action is, according to N.C. Gen.Stat. § 90–21.11(2) a., a “civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional [health care] services.” As we have previously noted, “[i]t seems clear that the legislature intended to use the word ‘professional’ as implying a specialized knowledge and skill beyond manual dexterity.” Smith v. Keator, 21 N.C.App. 102, 105, 203 S.E.2d 411, 415 (1974), cert. denied, 285 N.C. 235, 204 S.E.2d 25, and aff'd, 285 N.C. 530, 206 S.E.2d 203, and appeal dismissed,419 U.S. 1043, 95 S.Ct. 613, 42 L.Ed.2d 636 (1974)). As a result, the ultimate issue before us is whether Plaintiff's claims, which arise from an incident in which Defendants, either personally or acting through their agents, dropped Plaintiff on the floor while attempting to move him from his bed to a shower chair, constitute a medical malpractice action or a claim sounding in ordinary negligence.
This Court addressed a similar issue in Lewis v. Setty, 130 N .C.App. 606, 503 S.E.2d 673 (1998), in which the plaintiff alleged that he was a quadriplegic; that he went to a defendant's office for an examination; that, although the plaintiff was assured that the defendant's office was equipped with tables that could be raised and lowered to accommodate the plaintiff's condition, a table with that capability was not used during the plaintiff's visit; and that, after being successfully moved to the examination table, the plaintiff sustained a right hip fracture when plaintiff fell while the defendant attempted to manually return him to his wheelchair after the examination had been concluded. The plaintiff in Lewis did not include a certification pursuant to N.C. Gen.Stat. § 1A–1, Rule 9(j) in his complaint despite having alleged that the defendant had “failed to use reasonable care by not raising and lowering the head of the examining table in the course of performing the [p]laintiff's examination.” Lewis, 130 N.C.App. at 607, 503 S.E.2d at 673 (alteration in original). On appeal, this Court concluded that the defendant's alleged actions fell “squarely within the parameters of ordinary negligence,” noting that the professional services which underlie a medical malpractice action must “ ‘aris[e] out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, [when] the labor [or] skill involved is predominantly mental or intellectual, rather than physical or manual.’ “ Id. at 608, 503 S.E.2d at 674 (quoting Smith, 21 N.C.App. at 105–06, 203 S.E.2d at 415) (third alteration in original); see also Allen v. Granville County, 203 N.C.App. 365, 367–68, 691 S.E.2d 124, 127 (2010) (holding that “failing to supervise a patient recently treated with seizures until a responsible adult was able to care for him would ... be a claim of ordinary negligence”); Taylor v. Ventor, Inc., 136 N.C.App. 528, 530, 525 S.E.2d 201, 203,disc. review denied, 351 N.C. 646, 543 S.E.2d 884, 889 (2000) (holding that “[p]reventing a patient from dropping a match or a lighted cigarette upon themselves, while in a designated smoking room, does not involve matters of medical science” and are properly considered using “the standards of ordinary negligence”). Thus, in determining whether the claims asserted in Plaintiff's complaint sound in ordinary negligence or medical malpractice, we must determine whether the allegedly negligent acts which led to Plaintiff's injury stemmed from the application of “specialized knowledge, labor, or skill” or from actions that are primarily “physical or manual.” Id.
In this case, Plaintiff, like the plaintiff in Lewis, alleges that he sustained personal injuries as the result of a fall that occurred while he was in the care of individuals providing health care services. More specifically, Plaintiff alleged in his complaint that, while Defendants Whitley and McDougald “were attempting to move the Plaintiff from his bed to a shower chair, Plaintiff was dropped.” Consistently with our decision in Lewis, we find that the factual allegations set out in Plaintiff's complaint clearly assert a claim sounding in ordinary negligence rather than medical malpractice despite the fact that Plaintiff's complaint contains language which might indicate a contrary understanding of the nature of his own claim. Simply put, the factual allegations set out in Plaintiff's complaint do not describe injuries which resulted from the application or misapplication of “specialized knowledge and skill beyond manual dexterity.” Smith, 21 N.C.App. at 105, 203 S.E.2d at 415. As a result, we hold that the claims asserted in Plaintiff's complaint sound in ordinary negligence rather than medical malpractice, so that the essential claims which Plaintiff asserted in his initial and refiled complaint did not require the inclusion of a certification pursuant to N.C. Gen.Stat. § 1A–1, Rule 9(j).
In describing Defendants' allegedly negligent conduct, Plaintiff stated that “Defendants were negligent in failing to exercise the degree of skill, care and learning ordinarily exercised by other nurses, aides, and/or nursing home and rehabilitation workers.” However, as we noted in the text of this opinion, the allegedly negligent act upon which Plaintiff relies in support of his request for an award of damages stems from Defendants' failure to exercise due care while transferring him from his bed to a shower chair does not, generally speaking, appear to involve the application of “specialized knowledge, labor, or skill.”
The parties have litigated this case before the trial court and this Court as a unified whole. In other words, the parties have not discussed the extent to which particular claims for relief, as compared to Plaintiff's overall claims, viewed globally, should be deemed to be medical malpractice claims rather than ordinary negligence claims. As should be obvious, Plaintiff is only entitled to prevail at trial upon claims which are not time-barred and, to the extent that those specific claims sound in medical malpractice rather than ordinary negligence, are supported by an appropriate certification pursuant to N.C. Gen.Stat. § 1A–1, Rule 9(j). For that reason, in the event that Plaintiff attempts to proceed on any specific claim on remand which is properly deemed to be a medical malpractice rather than an ordinary negligence claim, the trial court is entitled to determine whether that claim is properly before the court prior to allowing the jury to consider it. before us has been taken, the record appears to indicate that the correct spelling of Plaintiff's name is “Tracy.”
In seeking to persuade us to affirm the trial court's order, Defendants advance two principal arguments. First, Defendants rely on this Court's decision in Serro, which involved a negligence claim that had been asserted against a medical provider premised on the theory that the provider had negligently allowed a patient to go bowling and that the injuries that the plaintiff sustained during that recreational outing would never have occurred had the provider not allowed the patient to bowl. 185 N.C.App. at 525, 648 S.E.2d at 567. In Serro, this Court held that the plaintiff's claim was a medical malpractice action on the grounds that “[d]etermining whether a patient who is known to be at risk of falling should participate in such an activity is precisely the kind of professional judgment to which N.C. Gen.Stat. § 90–21.11 applies.” Id. at 529, 648 S.E.2d at 569. In this case, however, Plaintiff is not alleging that the decision to move him from the bed to the bath chair stemmed from the exercise of any sort of erroneous or impermissible “professional judgment;” instead, Plaintiff alleges that his injuries resulted from the manner in which Defendants moved him from his bed to a shower chair. As a result, we do not believe that our decision in Serro has any particular bearing on the proper resolution of this case.
Secondly, Defendants rely on the language of N.C. Gen.Stat. § 90–21.11(2)(b), which defines a medical malpractice action as including one brought against a “nursing home” on the basis of allegedly “negligent monitoring and supervision.” However, the literal language of N.C. Gen.Stat. § 90–21.11(2)(b) provides that, in order for any action against a nursing home to be treated as a medical malpractice claim, the injury which underlies the plaintiff's claim must stem from a negligent act as defined in N.C. Gen.Stat. § 90–21.11(2)(a), which focuses upon “the furnishing or failure to furnish professional services.” As we have previously decided, the incident that allegedly led to Plaintiff's injury did not stem from any “specialized knowledge or skill” as compared to the exercise of manual dexterity. Thus, Defendants' second argument lacks merit as well.
Having determined that Plaintiff's claims sound in ordinary negligence rather than medical malpractice, we must next determine whether Plaintiff's action was barred by the applicable statute of limitations or statute of repose. In light of the fact that Plaintiff's injury occurred on 23 November 2006, the three-year statute of limitations set out in N.C. Gen.Stat. § 1–52(16) (stating that an action “for personal injury or physical damage to claimant's property” not governed by the statute of repose governing professional negligence actions shall be brought within three years of the date upon which “bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs”) did not run until 23 November 2009. As a result of the fact that Plaintiff filed his initial complaint on 28 September 2009, the action which he subsequently voluntarily dismissed without prejudice was initiated in a timely manner.
If a plaintiff voluntarily dismisses his or her claim without prejudice as allowed by N.C. Gen.Stat. § 1A–1, Rule 41(a)(1), a new action based on the same claim may be commenced within one year after such dismissal, and “the refiled case will relate back to the original filing for purposes of tolling the statute of limitations.” Losing v. Food Lion, L.L.C., 185 N.C.App. 278, 283, 648 S.E.2d 261, 264–65 (2007), disc. review denied,362 N.C. 236, 659 S.E.2d 735 (2008). As a result of the fact that Plaintiff voluntarily dismissed his claims against Defendants on 14 January 2011 and re-filed his complaint on 30 September 2011, Plaintiff's complaint was not time-barred. In addition, given that, for the reasons set forth above, Plaintiff's claim sounded in ordinary negligence rather than medical malpractice, the four-year statute of repose set out in N.C. Gen.Stat. § 1–15(c) (providing that “a cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action;” that “whenever there is bodily injury to the person ... which originates under circumstances making the injury ... not readily apparent to the claimant at the time of its origin” and the resulting injury “is discovered or should reasonably be discovered by the claimant two or more years after the occurrence of the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date that discovery is made;” and that “in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action”) is inapplicable to this case. As a result, Plaintiff's claim is not barred by any applicable statute of limitations or statute of repose.
III. Conclusion
Thus, for the reasons set forth above, we conclude that Plaintiff was not required to comply with the provisions of N.C. Gen.Stat. § 1A–1, Rule 9(j) and that Plaintiff's complaint was not barred by any applicable statute of limitations or statute of repose. As a result, the trial court's order dismissing Plaintiff's complaint with prejudice should be, and hereby is, reversed and this case is remanded to the Mecklenburg County Superior Court for further proceedings not inconsistent with this opinion.
REVERSED. Judges CALABRIA and DILLON concur.
Report per Rule 30(e).