Superior Court. Heard in the Court of Appeals 21 March 2017.
by plaintiff from order entered 1 June 2017 by Judge Richard
S. Gottlieb in Forsyth County No. 17 CVS 763
Law Office of Java O. Warren, by Java O. Warren, and
Christopher Allen White Law, by Christopher Allen White, for
Moore Leatherwood LLP, by Kip D. Nelson, D. Clark Smith, Jr.
and Joshua O. Harper, for defendants-appellees.
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.
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.
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.
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.
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.
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 ...