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Bluitt v. Wake Forest University Baptist Medical Center

Court of Appeals of North Carolina

April 17, 2018

ANGELA MESHELL BLUITT, Plaintiff,
v.
WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, WAKE FOREST UNIVERSITY, NORTH CAROLINA BAPTIST HOSPITAL and EVAN RUBERY, MD, Defendants.

          Superior Court. Heard in the Court of Appeals 21 March 2017.

          Appeal by plaintiff from order entered 1 June 2017 by Judge Richard S. Gottlieb in Forsyth County No. 17 CVS 763

          The Law Office of Java O. Warren, by Java O. Warren, and Christopher Allen White Law, by Christopher Allen White, for plaintiff-appellant.

          Smith Moore Leatherwood LLP, by Kip D. Nelson, D. Clark Smith, Jr. and Joshua O. Harper, for defendants-appellees.

          ARROWOOD, Judge.

         Angela Meshell Bluitt ("plaintiff") appeals from an order granting Wake Forest University Baptist Medical Center, Wake Forest University, North Carolina Baptist Hospital, and Evan Rubery, MD's ("defendants") motion to dismiss for failure to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. For the reasons stated herein, we affirm the order of the trial court.

         I. Background

         On 31 January 2017, plaintiff filed a complaint for medical negligence against defendants, relying on the theory of res ipsa loquitur. The complaint alleged as follows. On or about 31 January 2014, plaintiff underwent a cardiac ablation, a surgery to remedy an irregular heartbeat, at Wake Forest University Baptist Medical Center. Plaintiff received general anesthesia, rendering her unconscious during the procedure. When plaintiff awoke after the surgery, she immediately "experienced horrific and excruciating pain in her lower back." Prior to being admitted for the cardiac ablation, plaintiff had no back pain or injury, and she claims no personal knowledge as to how, why, or when she sustained the injury to her back. On or about 24 February 2014, the injury on plaintiff's lower back was diagnosed as a third-degree burn. Due to the injury, plaintiff underwent a skin graft on 28 February 2014. Based on these facts, plaintiff alleges that the negligence of defendants was the proximate cause of the injury and damage to her person. The complaint did not allege that plaintiff's medical care had been reviewed by an expert prior to filing.

         On 7 April 2017, defendants filed a motion to dismiss for failure to comply with Rule 9(j). Defendants filed a brief in support of their motion, and submitted four affidavits from cardiac electrophysiologists to support their arguments that the motion to dismiss should be granted because: (1) plaintiff's complaint failed to allege facts that establish negligence pursuant to res ipsa loquitur; (2) North Carolina rarely applies res ipsa loquitur to medical malpractice claims; (3) plaintiff's alleged injury was an inherent risk of the procedure she underwent; and (4) even if the burns were not an inherent risk of the procedure, the average juror would require expert testimony to determine whether defendants' conduct fell below the applicable standard of care. In response, plaintiff submitted a brief opposing defendants' motion, photographs of plaintiff's back following the 31 January 2014 surgery, and affidavits from plaintiff and two of her family members.

         On 30 May 2017, defendants' motion came on for hearing in Forsyth County Superior Court, the Honorable Richard S. Gottlieb presiding. On 1 June 2017, Judge Gottlieb granted defendants' motion, ruling that plaintiff's complaint failed to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure.

         Plaintiff appeals.

II. Discussion

         On appeal, plaintiff argues that the trial court erred by granting defendants' motion to dismiss pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure. Specifically, plaintiff argues the trial court converted the motion to dismiss into a motion for summary judgment by considering defendants' expert affidavits, and erred by impermissibly applying Rule 9(j)(1) and (2)'s certification requirements to her Rule 9(j)(3) claim, and, in so doing, failed to treat the complaint's allegations as true. We disagree and affirm the trial court's dismissal of plaintiff's complaint.

         We review the trial court's dismissal pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure de novo. Alston v. Hueske, 244 N.C.App. 546, 548, 781 S.E.2d 305, 308 (2016) (citation omitted). "In medical malpractice actions, complaints must meet a higher standard than generally required to survive a motion to dismiss[, ]" in that they must also meet the requirements of Rule 9(j). Id. at 551-52, 781 S.E.2d at 309 (citation omitted). "[W]hen ruling on [a motion to dismiss pursuant to Rule 9(j)], a court must consider the facts relevant to 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 v. A Triangle Women's Health Clinic,155 N.C.App. 372, 376, 573 S.E.2d 600, 603 (2002)). "[A] trial court's order dismissing a ...


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