in the Court of Appeals 17 October 2019
by plaintiff from order entered 7 January 2019 by Judge Adam
M. Conrad in Mecklenburg County Superior Court No. 18 CVS
& Perdue, P.A., by Matthew W. Buckmiller and Joseph Z.
Frost, for plaintiff.
& Bird, LLP, by Brian D. Boone, Michael R. Hoernlein, and
Rebecca L. Gauthier, for defendants.
Lou Demarco ("plaintiff") appeals from order
granting motion of Charlotte-Mecklenburg Hospital Authority,
Carolinas Physicians Network, Inc., and Carolinas Medical
Center-Northeast ("defendants") to dismiss
plaintiff's claims with prejudice pursuant to N.C. R.
Civ. P. 12(b)(6) (2019). For the following reasons, we affirm
in part, reverse in part, and remand.
case arises from an error in plaintiff's medical records.
Plaintiff's complaint alleges that she is a 76-year-old
woman who receives disability compensation from the U.S.
Department of Labor's Office of Worker's Compensation
Programs ("OWCP"). Under OWCP policy, plaintiff is
required to undergo annual medical evaluations which are sent
by plaintiff's doctors to OWCP. In preparation for an
upcoming medical evaluation, plaintiff requested a copy of
her medical record from her previous annual evaluation from
Dr. Katherine Foster ("Dr. Foster"), an employee of
defendants. One document in plaintiff's medical record,
titled "Problem List," catalogues instances in
which her attending physicians have recorded her various
ailments over time, along with information concerning when
the problem was last updated and whether or not it is ongoing
receipt of her medical record, plaintiff discovered erroneous
entries in the Problem List. The Problem List contained two
entries ("the erroneous entries") created in 2011
by Dr. Linda Bresnahan ("Dr. Bresnahan"), an
employee of defendants Charlotte-Mecklenburg Hospital
Authority and Carolinas Medical Center-Northeast. The
erroneous entries indicated that plaintiff had been diagnosed
with "gonococcal infection (acute) of lower
genitourinary tract" and "gonorrhea" in 2011,
which were "resolved" in January of 2016. Plaintiff
has neither been diagnosed with nor treated for any sexually
transmitted disease in her lifetime.
contacted Dr. Bresnahan to address the erroneous entries, and
Dr. Bresnahan admitted that they had been "added to
[her] chart erroneously in Dec[.] 2011[, ]" "found
no reason" why they were entered, and had no explanation
for how the erroneous entries had been added to her medical
record. To address this mistake, Dr. Bresnahan amended the
Problem List for the erroneous entries by adding language
reflecting that the diagnoses had been "canceled"
and "entered in error" (hereinafter "the
plaintiff repeatedly insisted that this solution was
Health Insurance Portability and Accountability Act of 1996,
Pub. L. No. 104-191, 110 Stat. 1936 ("HIPAA")
regulations, requested an amendment of her medical record to
completely erase the annotated entries from her medical
record. Defendants deemed their response sufficient to
address the problem and took no further action to change the
Problem List in plaintiff's medical record. In January of
2018, Dr. Foster conducted plaintiff's annual medical
evaluation for submission to OWCP. Dr. Foster sent OWCP the
medical evaluation along with the rest of plaintiff's
medical record, including the annotated entries.
refusal to comply with plaintiff's request to completely
erase the annotated entries from her medical record led
plaintiff to file her complaint in the instant case,
asserting claims of negligence, negligent infliction of
emotional distress, intentional infliction of emotional
distress, and defamation. Defendants responded by moving to
dismiss the complaint with prejudice for failure to state a
claim upon which relief could be granted, pursuant to N.C. R.
Civ. P. 12(b)(6). A hearing on this motion was held at the 6
November 2018 civil session of Mecklenburg County Superior
Court. The trial court entered an order granting
defendants' motion, and this appeal followed.
argues that the trial court erred in dismissing her claims of
negligence, negligent infliction of emotional distress, and
defamation pursuant to Rule 12(b)(6), for failure to state a
claim upon which relief can be granted. We address each
argument in turn.
Standard of Review
review appeals from dismissals under Rule 12(b)(6) de
novo." Arnesen v. Rivers Edge Golf Club
& Plantation, Inc., 368 N.C. 440, 448, 781 S.E.2d 1,
8 (2015) (citations omitted).
Dismissal of an action under Rule 12(b)(6) is appropriate
when the complaint fail[s] to state a claim upon which relief
can be granted. [T]he well-pleaded material allegations of
the complaint are taken as true; but conclusions of law or
unwarranted deductions of fact are not admitted. When the
complaint on its face reveals that no law supports the claim,
reveals an absence of facts sufficient to ...