Wheeless v. Maria Parham Medical Center, Inc.

NO. COA14-612

NORTH CAROLINA COURT OF APPEALS

Filed: 2 December 2014

CLIFFORD ROBERTS WHEELESS, III,
M.D.,
Plaintiff,

v. Vance County
No. 13 CVS 335
MARIA PARHAM MEDICAL CENTER, INC.,

HENDERSON/VANCE HEALTHCARE 1, INC.
f/k/a MARIA PARHAM ANESTHESIA AND
PHYSIATRY, INC. d/b/a NORTHERN
CAROLINA SURGICAL ASSOCIATES,

CYNTHIA ROBINSON, M.D.,
INDIVIDUALLY AND AS AN EMPLOYEE
AND/OR AGENT OF HENDERSON/VANCE
HEALTHCARE I, INC., AND/OR MARIA
PARHAM MEDICAL CENTER, INC.,

JOSEPH MULCAHY, M.D., INDIVIDUALLY
AND AS AN EMPLOYEE AND/OR AGENT OF
HENDERSON/VANCE HEALTHCARE I,
INC., AND/OR MARIA PARHAM MEDICAL
CENTER, INC.,

ROBERT NOEL, JR., M.D.,
INDIVIDUALLY AND AS AN EMPLOYEE
AND/OR AGENT OF HENDERSON/VANCE
HEALTHCARE I, INC., AND/OR MARIA
PARHAM MEDICAL CENTER, INC.,

ROBERT SINGLETARY, INDIVIDUALLY
AND/OR CEO AND EMPLOYEE AND/OR
AGENT OF HENDERSON/VANCE
HEALTHCARE I, INC., AND/OR MARIA
PARHAM MEDICAL CENTER, INC.,

JOHN/JANE/IT DOE 1 THROUGH 5,
INDIVIDUALLY AND AS AN EMPLOYEE
 -2-
AND/OR AGENT OF HENDERSON/VANCE
HEALTHCARE I, INC., AND/OR MARIA
PARHAM MEDICAL CENTER, INC.,
Defendants.

Appeal by plaintiff from orders entered 25 November 2013 by

Judge Robert H. Hobgood in Vance County Superior Court. Heard

in the Court of Appeals 22 October 2014.

The Law Office of Colon & Associates, PLLC, by Arlene L.
Velasquez-Colon, and Congdon Law, by Jeannette Griffith
Congdon, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice, LLP, by James M. Powell
and Theresa M. Sprain, for defendant-appellees Maria Parham
Medical Center, Inc., Henderson/Vance Healthcare I, Inc.
f/k/a Maria Parham Anesthesia and Physiatry, Inc. d/b/a
Northern Carolina Surgical Associates, Maria Parham Medical
Center, Inc., and Robert Singletary.

Yates, McLamb & Weyher, L.L.P., by Dan J. McLamb, Samuel G.
Thompson, Jr., and John B. Ward, for defendant-appellees
Cynthia Robinson, M.D., Joseph Mulcahy, M.D., and Robert
Noel, Jr., M.D.

BRYANT, Judge.

Since defendants are health care professionals rendering

professional services, they are not subject to liability for

unfair and deceptive trade practices. Where plaintiff cannot

show the existence of a physician-patient relationship,

plaintiff’s claim for medical malpractice must be dismissed.

The doctrine of abatement is applicable where two complaints are
 -3-
substantially identical as to parties, subject matter, issues

involved, and relief demanded.

Plaintiff Clifford Roberts Wheeless, III, M.D., is a board-

certified orthopedic surgeon who held active medical privileges

at defendant Maria Parham Medical Center (“MPMC”) from 1998 to

2006. In 2005, MPMC’s medical executive committee conducted a

peer review of plaintiff’s clinical skills. MPMC then initiated

a new peer review in 2006 regarding allegations that plaintiff

had violated MPMC’s disruptive physician policy. Plaintiff

denied these allegations and requested a fair hearing concerning

the matter. Prior to the fair hearing, plaintiff and MPMC

entered into a mediated settlement agreement in July 2006. This

agreement required MPMC to change plaintiff’s medical privileges

from active to consulting staff, to terminate all further

actions against plaintiff, and to abide by a strict

confidentiality provision.

Despite the mediated settlement agreement, in August 2006,

plaintiff alleged that defendant had failed to honor plaintiff’s

consulting privileges. Plaintiff again alleged a failure by

defendant to acknowledge plaintiff’s consulting privileges in

early 2007.
 -4-
In 2009, plaintiff was notified by the North Carolina

Medical Board about an anonymous complaint submitted by “W.

Blower” alleging inappropriate and disruptive behavior by

plaintiff. The anonymous complaint included references to

incidents that were raised during the 2005 and 2006 peer

reviews. After an investigation by the North Carolina Medical

Board, the allegations in the anonymous complaint against

plaintiff were dismissed.

On 25 August 2011, plaintiff filed a complaint against

defendants MPMC, MPMC Medical Executive Committee, MPMC Board of

Directors, Robert Singletary as CEO of MPMC, Cynthia Robinson,

M.D., and Whistle Blower 1 through 10. In the complaint,

plaintiff alleged, inter alia, claims for unfair and deceptive

trade practices, breach of contract, fraud, civil conspiracy,

and intentional and negligent infliction of emotional distress.

On 30 April 2012, plaintiff voluntarily dismissed his claims for

intentional and negligent infliction of emotional distress.

Defendant MPMC filed a motion for summary judgment on 13 June

2012. By means of an order entered 10 August, the trial court

granted MPMC’s motion, in part, with respect to plaintiff’s

claims for, inter alia, unfair and deceptive trade practices,

actual and constructive fraud, breach of contract, invasion of
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privacy, civil conspiracy, and tortious interference with

contractual relations and prospective economic advantage. The

remaining claims proceeded to discovery.1

On 28 June 2013, plaintiff filed a second complaint against

MPMC; Henderson/Vance Healthcare I, Inc. f/k/a Maria Parham

Anesthesia and Physiatry, Inc. d/b/a Northern Carolina Surgical

Associates; Cynthia Robinson, M.D., individually and as an

employee and/or agent of Henderson/Vance Healthcare I, Inc.,

and/or MPMC; Joseph Mulcahy, M.D., individually and as an

employee and/or agent of Henderson/Vance Healthcare I, Inc.,

and/or MPMC; Robert Noel, Jr., M.D., individually and as an

employee and/or agent of Henderson/Vance Healthcare I, Inc.,

and/or MPMC; Robert Singletary, individually and as CEO and

employee and/or agent of Henderson/Vance Healthcare I, Inc.,

and/or MPMC; and John/Jane/It Doe I through 5, individually and

as an employee and/or agent of Henderson/Vance Health I, Inc.,

and/or MPMC (“defendants”). In the second complaint, plaintiff

1
Plaintiff and MPMC appealed from separate trial court orders
regarding discovery in this earlier case. The trial court order
compelling MPMC to supplement its responses to discovery was
reversed. A separate order granting MPMC’s motion to compel
production of plaintiff’s medical records was affirmed. See
Wheeless v. Maria Parham Med. Ctr., Inc., No. COA13-1063, 2014
N.C. App. LEXIS 686 (July 1, 2014); Wheeless v. Maria Parham
Med. Ctr., Inc., No. COA13-1475, 2014 N.C. App. LEXIS 772 (July
15, 2014).
 -6-
alleged claims for unfair and deceptive trade practices,

malicious prosecution, medical malpractice, negligence, and

negligence per se against all defendants. Plaintiff sought

compensatory, punitive, special, and treble damages and

attorneys’ fees.

On 26 July 2013, defendants MPMC, Henderson/Vance

Healthcare I, Inc., and Robert Singletary filed a motion to

dismiss pursuant to Rule 12(b)(6). On 26 August, defendants

Cynthia Robinson, M.D., Joseph Mulcahy, M.D., and Robert Noel,

Jr., M.D., filed a motion to dismiss pursuant to Rule 12(b)(6).

By means of orders entered on 25 November, the trial court

granted defendants’ motions to dismiss with respect to

plaintiff’s claims for unfair and deceptive trade practices,

medical malpractice, negligence, and negligence per se. The

trial court denied defendants’ motions with respect to

plaintiff’s claim for malicious prosecution. Plaintiff appeals.

________________________

As an initial matter, we note that plaintiff’s appeal is

interlocutory since plaintiff’s claim from his second complaint

for malicious prosecution remains pending before the trial

court.
 -7-
In general, a party cannot immediately appeal from an

interlocutory order. Davis v. Davis, 360 N.C. 518, 524, 631

S.E.2d 114, 119 (2006). “The rationale behind [this rule] is

that no final judgment is involved in such a denial and the

movant is not deprived of any substantial right that cannot be

protected by a timely appeal from a final judgment which

resolves the controversy on its merits.” Block v. Cnty. of

Person, 141 N.C. App. 273, 276—77, 540 S.E.2d 415, 418 (2000)

(citation omitted).

However, an interlocutory order may be reviewed on appeal

“(1) when there has been a final determination as to one or more

of the claims and the trial court certifies that there is no

just reason to delay the appeal, [or] (2) if delaying the appeal

would prejudice a substantial right.” Milton v. Thompson, 170

N.C. App. 176, 178, 611 S.E.2d 474, 476 (2005) (citation

omitted).

In its orders granting, in part, defendants’ motions to

dismiss, the trial court noted that:

Plaintiff’s motion to certify the Court’s
ruling dismissing Counts I [unfair and
deceptive trade practices] and III [medical
malpractice and/or negligence] as a Final
Judgment under Rule 54(b) is allowed.
Dismissal of Counts I and III of the
Plaintiff’s complaint is a final judgment
and there is no just reason for delay.
 -8-

Plaintiff’s claims, for unfair and deceptive trade

practices, medical malpractice, negligence, and negligence per

se, were dismissed by order of the trial court pursuant to

defendants’ motions to dismiss under Rule 12(b)(6). As a motion

to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency

of a claim, a finding that the claim was legally insufficient

amounts to a final judgment with respect to that claim. See

Cline v. Teich, 92 N.C. App. 257, 264, 374 S.E.2d 462, 466

(1988) (“[D]ismissal under Rule 12(b)(6) is an adjudication on

the merits[.]”). Further, we note that the trial court certified

the dismissal of this claim as final under Rule 54(b). See

Milton, 170 N.C. App. at 178, 611 S.E.2d at 476. Therefore, the

trial court’s order dismissing plaintiff’s claims for unfair and

deceptive trade practices, medical malpractice, negligence, and

negligence per se is immediately appealable.

________________________

Plaintiff raises two issues on appeal concerning whether

the trial court erred (I) by granting defendants’ motions and

dismissing plaintiff’s claim for unfair and deceptive trade

practices; and (II) by granting defendants’ motions and

dismissing plaintiff’s claims for medical malpractice and/or

negligence.
 -9-
I.

Plaintiff contends that the trial court erred by granting

defendants’ motions and dismissing plaintiff’s claim for unfair

and deceptive trade practices. We disagree.

“On appeal of a 12(b)(6) motion to dismiss, this Court

conducts a de novo review of the pleadings to determine their

legal sufficiency and to determine whether the trial court's

ruling on the motion to dismiss was correct.” Burgin v. Owen,

181 N.C. App. 511, 512, 640 S.E.2d 427, 429 (2007) (citation and

quotation omitted).

Plaintiff argues that the trial court erred by granting

defendants’ motions to dismiss plaintiff’s claim for unfair and

deceptive trade practices. Specifically, plaintiff contends that

the trial court erred because the “learned profession” exception

under N.C. Gen. Stat. § 75-1.1 does not apply to defendants in

this matter.

North Carolina General Statutes, Chapter 75-1.1, holds

that:

(a) Unfair methods of competition in or
affecting commerce, and unfair or deceptive
acts or practices in or affecting commerce,
are declared unlawful.

(b) For purposes of this section, “commerce”
includes all business activities, however
denominated, but does not include
 -10-
professional services rendered by a member
of a learned profession.

N.C.G.S. § 75-1.1(a), (b) (2013). To determine whether the

“learned profession” exclusion applies, a two-part inquiry must

be conducted: “[f]irst, the person or entity performing the

alleged act must be a member of a learned profession. Second,

the conduct in question must be a rendering of professional

services.” Reid v. Ayers, 138 N.C. App. 261, 266, 531 S.E.2d

231, 235 (2000) (citations omitted).

Plaintiff concedes that defendants, as medical

professionals, “are members of [a] learned profession.”

Plaintiff argues, however, that the learned profession exception

under N.C.G.S. § 75-1.1 does not apply here because, by

“illegally access[ing], shar[ing], and us[ing] Plaintiff’s peer

review materials and patients’ confidential medical records out

of malice and for financial gain for illegal improper

purpose[,]” defendants have not rendered professional services.

The improper conduct by defendants of which plaintiff

complains concerns the anonymous complaint sent by “W. Blower”

to the North Carolina Medical Board. This anonymous complaint

contained references to matters addressed by the 2005 and 2006

peer reviews, matters which plaintiff alleges were to be kept

confidential and private as a result of the 2006 mediated
 -11-
settlement agreement between plaintiff and MPMC. Despite this

complaint having been sent anonymously to the North Carolina

Medical Board, plaintiff asserts that all defendants, including

“John/Jane/It Doe 1 Through 5,” were potentially involved with

this anonymous complaint because only these parties had access

to the materials covered by the 2006 mediated settlement

agreement. As such, the conduct of which plaintiff complains

involves correspondence sent by one or more medical

professionals (defendants) to another group of medical

professionals (the North Carolina Medical Board) concerning the

conduct of yet another medical professional (plaintiff)

committed in a professional setting.

It is well-settled by our Courts that “a matter affecting

the professional services rendered by members of a learned

profession . . . therefore falls within the exception in

N.C.G.S. § 75-1.1(b).” Burgess v. Busby, 142 N.C. App. 393,

407, 544 S.E.2d 4, 11—12 (2001) (citations omitted); see also

Gaunt v. Pittaway, 139 N.C. App. 778, 784, 534 S.E.2d 660, 664

(2000) (“[M]edical professionals are expressly excluded from the

scope of N.C.G.S. § 75-1.1(a) and thus it clearly does not

follow that a statement by a medical professional, criminal or

otherwise, is governed by this particular statute.”). Indeed,
 -12-
[o]ur Court has made clear that unfair and
deceptive acts committed by medical
professionals are not included within the
prohibition of N.C.G.S. § 75-1.1(a). This
exception for medical professionals has been
broadly interpreted by this Court, see
Phillips v. A Triangle Women's Health
Clinic, 155 N.C. App. 372, 377-79, 573
S.E.2d 600, 604-05 (2002); Burgess, 142 N.C.
App. 393, 544 S.E.2d 4 (2001); Gaunt, 139
N.C. App. 778, 534 S.E.2d 660 (2000); Abram
v. Charter Medical Corp., 100 N.C. App. 718,
722-23, 398 S.E.2d 331, 334 (1990); Cameron
v. New Hanover Memorial Hospital, Inc., 58
N.C. App. 414, 447, 293 S.E.2d 901, 921
(1982), and includes hospitals under the
definition of “medical professionals.”

Shelton v. Duke Univ. Health Sys., Inc., 179 N.C. App. 120, 126,

633 S.E.2d 113, 117 (2006) (citation omitted) (affirming the

trial court’s dismissal of the plaintiff’s claim for unfair and

deceptive trade practices against the defendant hospital on

grounds that such a claim cannot be brought against medical

professionals pursuant to N.C.G.S. § 75-1.1). In this case,

defendants’ alleged conduct in making a complaint to the Medical

Board is integral to their role in ensuring the provision of

adequate medical care. Accordingly, plaintiff’s argument is

without merit.

II.
 -13-
Next, plaintiff argues that the trial court erred by

granting defendants’ motions and dismissing plaintiff’s claim

for medical malpractice and/or negligence. We disagree.

The standard of review of an order
granting a 12(b)(6) motion is whether the
complaint states a claim for which relief
can be granted under some legal theory when
the complaint is liberally construed and all
the allegations included therein are taken
as true. On a motion to dismiss, the
complaint's material factual allegations are
taken as true. Dismissal is proper when one
of the following three conditions is
satisfied: (1) the complaint on its face
reveals that no law supports the plaintiff's
claim; (2) the complaint on its face reveals
the absence of facts sufficient to make a
good claim; or (3) the complaint discloses
some fact that necessarily defeats the
plaintiff's claim.

Burgin, 181 N.C. App. at 512, 640 S.E.2d at 428—29 (citations

and quotation omitted).

Plaintiff contends that the trial court erred by granting

defendants’ motions to dismiss plaintiff’s third claim for

medical malpractice, negligence, and negligence per se. In his

second complaint, plaintiff also raised a claim for relief based

on res ipsa loquitur; plaintiff further orally asserted a claim

for relief based on corporate negligence before the trial court.

A. Medical Malpractice
 -14-
In his complaint, plaintiff alleged that defendants engaged

in medical malpractice pursuant to N.C. Gen. Stat. § 90-21.11.

North Carolina General Statutes, Chapter 90-21.11, holds that a

medical malpractice claim may be brought in the following

instances:

a. 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
medical, dental, or other health care by a
health care provider.

b. A civil action against a hospital, a
nursing home licensed under Chapter 131E of
the General Statutes, or an adult care home
licensed under Chapter 131D of the General
Statutes for damages for personal injury or
death, when the civil action (i) alleges a
breach of administrative or corporate duties
to the patient, including, but not limited
to, allegations of negligent credentialing
or negligent monitoring and supervision and
(ii) arises from the same facts or
circumstances as a claim under sub-
subdivision a. of this subdivision.

N.C. Gen. Stat. § 90-21.11(2) (2013).

Plaintiff contends that his claim for medical malpractice

has satisfied the pleading requirements of N.C.G.S. § 90-21.11

because defendants are medical providers and a medical provider—

patient relationship is not required to assert such a claim.

Plaintiff cites Jones v. Asheville Radiological Grp., P.A., 129

N.C. App. 449, 500 S.E.2d 740 (1998), rev’d in part on other
 -15-
grounds by 351 N.C. 348, 524 S.E.2d 804 (2000), in support of

his argument.

In Jones, the plaintiff sued her defendant physician and

medical provider, alleging that the defendants had disclosed her

medical records without her authorization. Id. at 453, 500

S.E.2d at 742. The trial court granted the defendants’ motion

to dismiss on the grounds that the unauthorized disclosure of

medical records did not give rise to a claim for medical

malpractice. Id. at 455, 500 S.E.2d at 744. This Court

disagreed, stating that “in the context of a health care

provider's unauthorized disclosure of a patient's confidences,

claims of medical malpractice, invasion of privacy, breach of

implied contract and breach of fiduciary duty/confidentiality

should all be treated as claims for medical malpractice.” Id. at

456, 500 S.E.2d at 744 (citation omitted). The trial court’s

dismissal of the plaintiff’s claim was then affirmed, however,

on the grounds that the plaintiff had failed to comply with the

statute of limitations in filing her complaint. Id. at 456—57,

500 S.E.2d at 744—45.

Jones is not applicable to the instant case since, in

Jones, the plaintiff was a patient of the defendants and, thus,

a clear physician/medical provider to patient relationship
 -16-
existed between the plaintiff and the defendants. Here,

plaintiff was not a patient of defendants, but rather a fellow

medical professional and associate of MPMC. “[I]t is well

settled that the relationship of health-care provider to patient

must be established to maintain an actionable claim for medical

malpractice.” Massengill v. Duke Univ. Med. Ctr., 133 N.C. App.

336, 338, 515 S.E.2d 70, 72 (1999) (citing Easter v. Lexington

Mem’l Hosp., Inc., 303 N.C. 303, 305—06, 278 S.E.2d 253, 255

(1981) (“It is well settled that the relationship of physician

to patient must be established as a prerequisite to an

actionable claim for medical malpractice.”) (citation omitted)).

Therefore, the trial court did not err by granting defendants’

motions to dismiss with respect to plaintiff’s claim for medical

malpractice.

B. Negligence, Negligence per se, Corporate Negligence, Res Ipsa

Loquitur

Plaintiff also brought written claims for negligence,

negligence per se, and res ipsa loquitur in his second

complaint, and orally attempted to assert a claim of corporate

negligence before the trial court. Plaintiff alleges that these

negligence claims arose from defendants’ failure to “exercise

reasonable care and due diligence in safeguarding the medical
 -17-
records generated by Plaintiff, and Plaintiff’s peer review

materials stored under the exclusive care, custody and control

of MPMC[.]” In its order dismissing these claims, the trial

court noted that “The motion to dismiss Plaintiff’s claim for

medical malpractice and/or negligence (Count III) is allowed.

The Court’s decision to dismiss Count III is not based on Rule

9(j) of the Rules of Civil Procedure.”

In his second complaint, plaintiff alleged that defendants

are medical providers and staff for whom plaintiff generated

confidential patient medical records. Plaintiff also alleged

that, because defendants engaged in two peer reviews of

plaintiff, defendants owed plaintiff a duty to “properly

safeguard[] and protect[]” records relating to these reviews

which were “stored under the exclusive care, custody and control

of MPMC[.]” Plaintiff further alleged that, in addition to

defendants “fail[ing] to exercise reasonable care and due

diligence in safeguarding [the] medical records generated by

Plaintiff, and Plaintiff’s peer review materials,” defendants

are liable under the doctrine of res ispa loquitur because

defendants’ “failure to safeguard Plaintiff’s private and

confidential materials is evidenced by the fact that said

Defendant[s] had exclusive possession, custody and control of
 -18-
said materials, which would not have been disclosed, but for

[defendants’] negligence.”

As a result, plaintiff has alleged that he is entitled to

recover damages from defendants based upon his claims for

negligence against defendants, including actions for negligence,

negligence per se, corporate negligence, and res ipsa loquitur.

However, these claims have been abated.

Under the law of this state, where a
prior action is pending between the same
parties for the same subject matter in a
court within the state having like
jurisdiction, the prior action serves to
abate the subsequent action. The prior
pending action doctrine involves essentially
the same questions as the outmoded plea of
abatement, and is, obviously enough,
intended to prevent the maintenance of a
subsequent action [that] is wholly
unnecessary and, for that reason, furthers
the interest of judicial economy. The
ordinary test for determining whether or not
the parties and causes are the same for the
purpose of abatement by reason of the
pendency of the prior action is this: Do the
two actions present a substantial identity
as to parties, subject matter, issues
involved, and relief demanded?

Jessee v. Jessee, 212 N.C. App. 426, 439, 713 S.E.2d 28, 37

(2011) (citations and quotations omitted).

A review of plaintiff’s two lawsuits indicates that there

exists significant overlap between the parties, subject matter,

issues, and relief demanded. Specifically, each lawsuit concerns
 -19-
a core group of defendants (MPMC, Cynthia Robinson, Robert

Singletary, and Whistle Blower 1 Through 10/ Doe 1 Through 5),

and identical subject matter and issues (that defendants’

failure to safeguard medical records generated by plaintiff and

peer review records concerning plaintiff has harmed plaintiff).

As plaintiff’s two lawsuits “present a substantial identity as

to parties, subject matter, issues involved, and relief

demanded[,]” plaintiff’s second complaint has been abated by

plaintiff’s first complaint. See id. Accordingly, the trial

court did not err in granting defendants’ motions to dismiss.

Affirmed.

Judges ELMORE and ERVIN concur.