The opinion of the court was delivered by: Whichard, Justice.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 126 N.C. App. 326, 485 S.E.2d 84 (1997), reversing an order allowing defendant's motion to dismiss entered 22 March 1996 by Britt (Joe Freeman), J., in Superior Court, Robeson County, and remanding for further proceedings. Heard in the Supreme Court 9 February 1998.
Plaintiffs brought this action for medical malpractice and negligent infliction of emotional distress arising from defendant's alleged failure to inform plaintiffs of the results of certain blood tests he performed. The trial court granted defendant's motion to dismiss the complaint pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6). The Court of Appeals reversed, and this Court granted defendant's petition for discretionary review.
The facts set forth herein are taken from the allegations of the complaint, which, in deciding a motion to dismiss, must be taken as true. See Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1981).
The complaint alleges that defendant is a duly licensed physician practicing family medicine. Plaintiffs, husband and wife, had a baby boy on 8 May 1991. In June 1991, plaintiffs received a letter from the State Health Department advising them that they needed to be tested for sickle-cell disease because of genetic traits carried by plaintiff-wife which their son could have inherited.
Plaintiffs went to the medical offices of defendant, where blood was drawn and sent to the State Laboratory of Public Health. Defendant told plaintiffs that if there was anything to be concerned about, he would call them, and that if they did not hear from him, there was no cause for concern. Plaintiffs never heard from defendant on the test results, even though plaintiff-wife visited defendant for minor ailments approximately four times between June 1991 and September 1993.
In September 1993, plaintiff-wife became pregnant with plaintiffs' second child. Plaintiffs' second son was born on 27 May 1994. In June 1994, plaintiffs learned that their second son had Hemoglobin O Arab, a sickle-cell disease. Plaintiffs further learned that the results of the 1991 blood tests showed that plaintiff-husband carried the O Arab factor sickle cell. Plaintiffs allege that the traits carried by plaintiff- wife combined with the factor carried by plaintiff-husband put the couple at a one-in-four risk of bearing a child with sickle-cell disease.
Plaintiffs have had to carry their child to Duke Medical Center for testing and procedures, and he has been placed on daily medication until he reaches five years of age. Plaintiff-wife has been unable to sleep through the night because of her fear that her child would stop breathing or would have other problems. This lack of sleep has prevented plaintiff-wife from attaining peak performance in her job as a school teacher. Both plaintiffs have missed work because of the requirements of caring for their child.
The complaint further alleges defendant was negligent in one or more of the following respects: (1) failure to communicate the results of the blood tests to plaintiffs; (2) failure to have adequate procedural safeguards to ensure that test results were properly communicated to patients; (3) breach of "the appropriate standards of practice for physicians practicing in Red Springs, or similar communities in 1991, with the same or similar training experience as Defendant"; (4) failure "to use his best medical judgment"; and (5) failure "to use reasonable care and diligence in the application of his knowledge and skill to the plaintiffs' care and treatment."
Plaintiffs further allege that because of defendant's negligence, they never received any genetic counseling to prepare them for being the parents of a child with sickle-cell disease and were deprived of the opportunity to make an informed decision regarding whether to have another child. The complaint also alleges that defendant's actions "amounted to extreme and outrageous conduct that amounts to a wanton and reckless disregard of the rights and safety of the Plaintiffs." Finally, plaintiffs allege that defendant's negligence caused them "extreme mental and emotional distress, and financial loss."
This case is before the Court on a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6). "A complaint is sufficient to withstand a motion to dismiss where no insurmountable bar to recovery on the claim alleged appears on the face of the complaint and where allegations contained therein are sufficient to give a defendant notice of the nature and basis of plaintiffs' claim so as to enable him to answer and prepare for trial." Forbis, 301 N.C. at 701, 273 S.E.2d at 241. Further, "when the allegations in the complaint give sufficient notice of the wrong complained of[,] an incorrect choice of legal theory should not result in dismissal of the claim if the allegations are sufficient to state a claim under some legal theory." Stanback v. Stanback, 297 N.C. 181, 202, 254 S.E.2d 611, 625 (1979). "A complaint may be dismissed pursuant to Rule 12(b)(6) if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim." Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136 (1990).
Plaintiffs here allege two claims in their complaint, one for medical malpractice and the other for negligent infliction of emotional distress. We address each in turn in light of the above standard of review.
The scope of a physician's duty to his patient, the basis of any medical malpractice claim, was succinctly described by Justice Higgins in Hunt v. Bradshaw, 242 N.C. 517, 88 S.E.2d 762 (1955), as follows:
A physician or surgeon who undertakes to render professional services must meet these requirements:
(1) He must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess; (2) he must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case; and (3) he must use his best judgment in the treatment and care of his patient. If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the ...