MARJORIE C. LOCKLEAR, Plaintiff,
MATTHEW S. CUMMINGS, M.D., SOUTHEASTERN REGIONAL MEDICAL CENTER, DUKE UNIVERSITY HEALTH SYSTEM and DUKE UNIVERSITY AFFILIATED PHYSICIANS, INC., Defendants.
in the Court of Appeals 8 March 2017.
by Plaintiff from orders entered 2 February 2016 and 4
February 2016 by Judge James Gregory Bell in Robeson County
No. 15 CVS 1945 Superior Court.
Offices of Walter L. Hart, IV, by Walter L. Hart, IV, for
Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham-Hinch,
David D. Ward, and Katherine Hilkey-Boyatt, for
Defendant-Appellees Matthew S. Cummings, M.D., Duke
University Health System, and Duke University Affiliated
Brotherton Ford Berry & Weaver, PLLC, by Robert A. Ford
and Demetrius Worley Berry, for Defendant-Appellee
Southeastern Regional Medical Center.
HUNTER, JR., Robert N., Judge.
C. Locklear ("Plaintiff") appeals from an order
dismissing her complaint against Defendants Dr. Matthew
Cummings, Duke University Health System, and Duke University
Affiliated Physicians (collectively "Duke
Defendants") under Rule 9(j), as well as the denial of
her motion to amend under Rule 15(a). Plaintiff also appeals
from an order dismissing her complaint against Defendant
Southeastern Regional Medical Center
("Southeastern") under Rules 9(j) and 12(b)(5), as
well as the denial of her motion to amend under Rule 15(a).
After review, we reverse in part and affirm in part.
Factual and Procedural Background
July 2015, one day before the statute of limitations expired,
Plaintiff filed a complaint against Defendants, seeking
monetary damages for medical negligence. The complaint
alleges the following narrative.
July 2012, Dr. Cummings performed cardiovascular surgery on
Plaintiff. During surgery, Dr. Cummings failed to monitor and
control Plaintiff's body and was distracted.
Additionally, he did not position himself in close proximity
to Plaintiff's body. While Plaintiff "was opened up
and had surgical tools in her[, ]" Plaintiff fell off of
the surgical table. Plaintiff's head and the front of her
body hit the floor. As a result of the fall, Plaintiff
suffered a concussion, developed double vision, injured her
jaw, displayed bruises, and was "battered" down the
left side of her body. Plaintiff also had
"repeated" nightmares about falling off the
surgical table. Duke Defendants and Defendant Southeastern
acted negligently by retaining physicians, nurses, and other
healthcare providers who allowed Plaintiff's accident to
September 2015, private process server, Richard Layton,
served Duke Defendants by delivering Plaintiff's civil
cover sheet, summons, and complaint to Margaret Hoover, a
registered agent for Duke Defendants. On 19 September 2015,
Gary Smith, Jr. served Plaintiff's summons and complaint
on Dr. Cummings. Lastly, on 24 September 2015, Smith served
Plaintiff's summons and complaint on Southeastern by
delivering the papers to C. Thomas Johnson, IV,
Southeastern's Chief Financial Officer.
November 2015, Dr. Cummings and Duke Defendants filed a joint
answer and motion to dismiss. Dr. Cummings and Duke
Defendants denied the allegations in Plaintiff's
complaint and asserted defenses under Rules 12(b)(6) and 9(j)
of the North Carolina Rules of Civil Procedure.
November 2015, Southeastern filed an answer and denied
Plaintiff's allegations. Southeastern moved to dismiss
Plaintiff's compliant under Rules 12(b)(4), 12(b)(5),
12(b)(6), and 9(j) of the North Carolina Rules of Civil
Procedure. On 29 December 2015, Johnson filed an affidavit.
In the affidavit, Johnson swore he was the Chief Financial
Officer of Southeastern, but not the corporation's
January 2016, the trial court held a hearing on all the
Defendants' pending motions. During argument, Plaintiff
requested "leave of the Court to amend [the] complaint
so that there's no controversy hereafter." Plaintiff
moved under Rule 60, not Rule 15(a), because "Rule 60 .
. . allows a mere clerical order - error to be
corrected." Then, Plaintiff requested leave
"pursuant to Rules 15(a) and 60."
February 2016, the trial court granted Dr. Cummings's and
Duke Defendants' motion to dismiss pursuant to Rule 9(j)
and denied Plaintiff's motion to amend under Rule 15(a).
On 4 February 2016, the trial court granted
Southeastern's motion to dismiss pursuant to Rules 9(j)
and 12(b)(5) and denied Plaintiff's motion to amend under
Rule 15(a). Plaintiff filed timely notice of appeal.
Standard of Review
standard of review of a Rule 12(b)(6) motion to dismiss is
de novo. Leary v. N.C. Forest Prods., Inc.,
157 N.C.App. 396, 400, 580 S.E.2d 1, 4 (2003). Likewise, a
trial court's order dismissing a complaint pursuant to
Rule 9(j) is reviewed de novo on appeal because it
is a question of law. Barringer v. Wake Forest Univ.
Baptist Med. Ctr., 197 N.C.App. 238, 256, 677 S.E.2d
465, 477 (2009) (citation omitted).
review the trial court's dismissal under Rule 12(b)(5)
de novo. New Hanover Cty. Child Support
Enforcement ex rel. Beatty v. Greenfield, 219 N.C.App.
531, 533, 723 S.E.2d 790, 792 (2012) (citation omitted).
Motions to Dismiss under Rule 12(b)(6) and Rule 9(j)
Plaintiff argues the trial court erred in dismissing her
complaint against all the Defendants under Rule 12(b)(6) and
Rule 9(j). Because Plaintiff's claims sound in ordinary
negligence, not medical malpractice, we agree.
North Carolina, the distinction between a claim of medical
malpractice and ordinary negligence is significant for
several reasons, including that medical malpractice actions
cannot be brought [without Rule 9(j) compliance]."
Gause v. New Hanover Reg'l Med. Ctr., ___
N.C.App. ___, ___, 795 S.E.2d 411, ___ (2016) (citing N.C.
Gen. Stat. § 1A-1, Rule 9(j) (2015)).
an action is treated as a medical malpractice action or as a
common law negligence action is determined by our
statutes[.]" Smith v. Serro, 185 N.C.App. 524,
529, 648 S.E.2d 566, 569 (2007). N.C. Gen. Stat. §
90-21.11(2)(a) defines a medical malpractice action as
"[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 . . . health care
by a health care provider." N.C. Gen. Stat. §
90-21.11(2)(a). "The term 'professional
services' is not defined by our statutes but has been
defined by the Court as '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.'" Gause,
___ N.C.App. at ___, 795 S.E.2d at ___ (quoting Sturgill
v. Ashe Mem'l Hosp., Inc., 186 N.C.App. 624, 628,
652 S.E.2d 302, 305 (2007)). "Our courts have classified
as medical malpractice those claims alleging injury resulting
from activity that required clinical judgment and
intellectual skill." Id. at ___, 795 S.E.2d at
(citation omitted). "Our courts have classified as
ordinary negligence those claims alleging injury caused by
acts and omissions in a medical setting that were primarily
manual or physical and which did not involve a medical
assessment or clinical judgment." Id. at ___,
795 S.E.2d at ___ (citation omitted).
cases of a plaintiff falling, the deciding factor is whether
the decisions leading up to the fall required clinical
judgment and intellectual skill. Where the complaint alleges
or discovery shows the fall occurred because medical
personnel failed to properly use restraints, the claim
sounded in medical malpractice. Sturgill, 186
N.C.App. at 628-30; Alston v. Granville Health Sys.,
221 N.C. 416, 421, 727 S.E.2d 877, 881 (2012)
("Alston II"). However, when a complaint
alleged the plaintiff fell of a gurney in an operating room
while unconscious, this Court held the claim sounded in
ordinary negligence, not medical malpractice. Alston v.
Granville Health Sys., No. 09-1540, 2010 WL 3633738
(unpublished) (Sept. 21, 2010) ("Alston
I"). The question is whether the actions
leading to the fall require specialized skill or clinical
judgment. Gause, ___ N.C.App. at ___, 795 S.E.2d at
___ (citations omitted).
complaint, Plaintiff states, inter alia:
23. That, at all times relevant to this action, Defendant
Cummings . . . held himself out to possess the special skills
and knowledge possessed by other physicians practicing in the
specialized field of internal medicine, cardiology, and
24. That the medical care and treatment rendered to Plaintiff
by Defendant Cummings on July 31, 2012 has been reviewed by a
person who is reasonably expected to qualify as an expert
witness under Rule 702 of the North Carolina Rules of
Evidence, and who is willing to testify that the medical care
rendered to Plaintiff fell below the applicable standard of
25. That the medical care and treatment of Defendant Cummings
has been reviewed by a person that Plaintiff will seek to
have qualified by an expert witness under Rule 702 of the
North Carolina Rules of Evidence, and who is willing to
testify that the medical care rendered to Plaintiff fell
below the applicable standard of care.
27. That the times, places, and on the occasion herein in
question, Defendant Cummings was negligent, and his acts and
omissions of negligence include, but are not limited to:
a) In failing to use his best professional judgment and skill
while operating on the Plaintiff;
b) In failing to properly control Plaintiff's body during