Wright v. WakeMed

NO. COA14-695
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
BETTY D. WRIGHT,
Plaintiff

Vance County
v.
No. 13 CVS 782

WAKEMED also known as WAKE COUNTY
HOSPITAL SYSTEM, INC., GURVINDER SINGH
DEOL, M.D., and JULIAN SMITH, PA-C,
Defendants

Appeal by plaintiff from order entered 12 March 2014 by

Judge Beecher R. Gray in Vance County Superior Court. Heard in

the Court of Appeals 19 November 2014.

Rogers and Rogers Lawyers, by Michael F. Rogers, for
Plaintiff.

Yates, McLamb & Weyher, L.L.P., by Dan J. McLamb, Crystal
B. Mezzullo, and Andrew C. Buckner, for Defendants.

ERVIN, Judge.

Plaintiff Betty D. Wright appeals from an order granting

Defendants’ motion to dismiss Plaintiff’s complaint. [R51-53]

On appeal, Plaintiff contends that the trial court erred by

allowing Defendants’ dismissal motion on the grounds that

Plaintiff’s complaint was not certified as required by N.C. Gen.

Stat. § 1A-1, Rule 9(j) despite the fact that Plaintiff had

attempted to assert a medical malpractice claim against
 -2-
Defendants. After careful consideration of Plaintiff’s

challenge to the trial court’s order in light of the record and

the applicable law, we conclude that the trial court’s order

should be affirmed.

I. Factual Background

On 21 September 2010, Plaintiff was admitted to WakeMed

hospital for spinal surgery. Following the procedure, Plaintiff

was discharged by WakeMed’s Surgical and Recovery ACUTE unit and

transferred to the WakeMed REHAB unit on 28 September 2010.

At the time of the transfer, Plaintiff was provided with a

document entitled “WakeMed REHAB Admission Orders; Admission

Medication Orders,” which contained a list of medications that

had been prescribed for Plaintiff, including prescription and

general medications that had not been included in a previous

medication list prepared by WakeMed ACUTE for Plaintiff. More

specifically, Defendants negligently directed that Xanax, Geodon

and Lithium be included in the “Admission Medication Orders,”

resulting in the ingestion of these medications and an episode

of somnolence and lethargy from which Plaintiff suffered for

several days.

On 8 August 2013, Plaintiff filed a complaint seeking the

recovery of damages for personal injury from Defendants in which

Plaintiff alleged that she was entitled to prevail on a res ipsa
 -3-
loquitur theory. On 16 October 2013, Defendants filed an answer

in which they denied the material allegations set out in

Plaintiff’s complaint and sought to have Plaintiff’s complaint

dismissed on a number of grounds, including a failure to state a

claim upon which relief could be granted. After a hearing held

on 3 March 2014 for the purpose of considering the issues raised

by Defendants’ dismissal motion, the trial court entered an

order dismissing Plaintiff’s complaint. Plaintiff noted an

appeal to this Court from the trial court’s order.

II. Legal Analysis

In her sole challenge to the trial court’s order, Plaintiff

contends that the trial court erred by granting Defendant’s

dismissal motion. More specifically, Plaintiff contends that

the trial court erred by failing to determine that she had

properly alleged that she was entitled to relief on res ipsa

loquitur grounds.1 We do not find Plaintiff’s argument

persuasive.

A. Standard of Review

When ruling on a motion to dismiss pursuant to N.C. Gen.

Stat. § 1A-1, Rule 12(b)(6), the trial court is required to
1
Although Plaintiff seems to suggest that she stated a claim
for relief on “general negligence” as well as res ipsa loquitur
grounds, she has not advanced any “general negligence” argument
in her brief. As a result, our decision in this case will focus
solely on whether Plaintiff’s complaint stated a valid res ipsa
loquitur claim.
 -4-
determine “whether, as a matter of law, the allegations of the

complaint, treated as true, are sufficient to state a claim upon

which relief may be granted under some legal theory.” Harris v.

NCNB Nat’l Bank of N.C., 85 N.C. App. 669, 670, 355 S.E.2d 838,

840 (1987). In the course of analyzing the sufficiency of the

plaintiff’s pleading, the complaint must be liberally construed

and “should not be dismissed for failure to state a claim unless

it appears beyond doubt that [the] plaintiff could prove no set

of facts in support of his claim which would entitle him to

relief.” Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d

757, 758 (1987). “On appeal of a [] motion to dismiss [lodged

pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)], 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 (internal quotation

marks and citation omitted), disc. review denied and appeal

dismissed, 361 N.C. 425, 647 S.E.2d 98, cert. denied, 361 N.C.

690, 652 S.E.2d 257 (2007).

B. Applicable Legal Principles

N.C. Gen. Stat. § 1A-1, Rule 9(j) provides, in pertinent

part, that:

Any complaint alleging medical malpractice
by a health care provider pursuant to [N.C.
 -5-
Gen. Stat. §] 90-21.11(2)a. in failing to
comply with the applicable standard of care
under [N.C. Gen. Stat. §] 90-21.12 shall be
dismissed unless:

(1) The pleading specifically asserts that
the medical care and all medical records
pertaining to the alleged negligence that
are available to the plaintiff after
reasonable inquiry have been reviewed by a
person who is reasonably expected to qualify
as an expert witness under [N.C. Gen. Stat.
§ 8C-1,] Rule 702 [] and who is willing to
testify that the medical care did not comply
with the applicable standard of care; [or]

. . . .

(3) The pleading alleges facts establishing
negligence under the existing common law
doctrine of res ipsa loquitur.

As a result, given that Plaintiff’s complaint lacks a

certification in the form required by N.C. Gen. Stat. § 1A-1,

Rule 9(j), the trial court correctly dismissed that pleading

unless Plaintiff successfully asserted a claim based on the

doctrine of res ipsa loquitur.

“Res ipsa loquitur (the thing speaks for itself) simply

means that the facts of the occurrence itself warrant an

inference of defendant’s negligence, i.e., that they furnish

circumstantial evidence of negligence where direct evidence of

it may be lacking.” Sharp v. Wyse, 317 N.C. 694, 697, 346

S.E.2d 485, 487 (1986) (quotation marks, citation, and emphasis

omitted). “The doctrine of res ipsa loquitur applies when (1)
 -6-
direct proof of the cause of an injury is not available, (2) the

instrumentality involved in the accident is under the

defendant’s control, and (3) the injury is of a type that does

not ordinarily occur in the absence of some negligent act or

omission.” Alston v. Granville Health System, __ N.C. App. __,

__, 727 S.E.2d 877, 879 (internal quotation marks and citation

omitted), disc. review dismissed, 366 N.C. 247, 731 S.E.2d 421

(2012). Thus, in order to successfully assert a claim based on

the doctrine of res ipsa loquitur, a “plaintiff must [be] able

to show – without the assistance of expert testimony – that the

injury was of a type not typically occurring in the absence of

some negligence by defendant.” Diehl v. Koffer, 140 N.C. App.

375, 378, 536 S.E.2d 359, 362 (2000) (emphasis omitted). As a

result of the fact that the doctrine of res ipsa loquitur only

applies in the absence of direct proof of the cause of the

plaintiff’s injury, a plaintiff is not entitled to rely on it in

the event that there is direct evidence of the reason that the

plaintiff sustained the injury for which he or she seeks relief.

Robinson v. Duke University Health Systems, Inc., __ N.C. App.

__, __, 747 S.E.2d 321, 330 (2013), disc. review denied, __ N.C.

__, 755 S.E.2d 618 (2014).

In order for the doctrine of res ipsa loquitur “to apply in

a medical malpractice claim, a plaintiff must allege facts from
 -7-
which a layperson could infer negligence by the defendant based

on common knowledge and ordinary human experience.” Smith v.

Axelbank, __ N.C. App. __, __, 730 S.E.2d 840, 843 (2012). “Our

Courts have consistently found that res ipsa loquitur is

inappropriate in the usual medical malpractice case, where the

question of injury and the facts in evidence are peculiarly in

the province of expert opinion.” Robinson, __ N.C. App. at __,

747 S.E.2d at 329 (internal quotation marks and citation

omitted). Nevertheless,

where proper inferences may be drawn by
ordinary men from approved facts which give
rise to res ipsa loquitur without infringing
this principle, there should be no
reasonable argument against the availability
of the doctrine in medical and surgical
cases involving negligence, just as in other
negligence cases, where the thing which
caused the injury does not happen in the
ordinary course of things, where proper care
is exercised.

Mitchell v. Saunders, 219 N.C. 178, 182, 13 S.E.2d 242, 245

(1941).

C. Validity of Trial Court’s Ruling

In granting Defendants’ dismissal motion, the trial court

stated that:

6. Under North Carolina law, the doctrine
Res Ipsa Loquitur is limited to situations
in which the plaintiff can show--without the
assistance of expert medical testimony--that
the plaintiff’s injury was a result of a
negligent act by the defendant(s) and that
 -8-
the injury would not have occurred in the
absence of negligence or dereliction of a
relevant duty on the part of the
defendant(s). Res Ipsa Loquitur is not
appropriate when the question of injury is
peculiarly in the province of expert
opinion.

7. The allegations in plaintiff’s
Complaint involve purported negligence in
medication reconciliation and in the
administration of certain medications which
the Complaint alleges caused the plaintiff
to become somnolent and lethargic.
Purported negligence as to these issues
cannot be inferred absent expert testimony
and, as such, the doctrine of res ipsa
loquitur does not apply under North Carolina
law.

Plaintiff’s contention that she has stated a claim for relief on

the basis of the doctrine of res ipsa loquitur fails for

multiple reasons.

In her complaint, Plaintiff has alleged that the injuries

for which she seeks redress were sustained as the result of an

explicitly delineated series of events. More specifically,

Plaintiff has alleged that her injuries resulted from the

ingestion of specific medications that she should not have

received and that her ingestion of these medications resulted

from the fact that medications that she had not been prescribed

were included on the materials that accompanied her transfer

from WakeMed ACUTE to WakedMed REHAB. In support of this

assertion, Plaintiff produced a list of the medications that
 -9-
were originally prescribed for her and “Admission Medications

Orders” signed by Dr. Deol showing that Xanax, Geodon, and

Lithium had been added to the list of medications that she had

originally been instructed to take at or about the time of her

transfer. As a result, Plaintiff has explicitly alleged that

she was injured in a specific manner by a specific act of

negligence, a fact that bars her from any attempt to rely on the

doctrine of res ipsa loquitur.

In seeking to persuade us to reach a different result,

Plaintiff contends that she had not alleged the existence of

direct proof concerning the manner in which her injuries

occurred given that the drugs that she claims had been

erroneously administered to her had metabolized and had left her

body by the time of her discharge, thereby depriving her of

scientific evidence of their presence in her body. We do not

believe that this fact has any bearing on our analysis given

that the issue raised by Plaintiff’s claim is not whether

Plaintiff actually ingested the medications in question, but

rather how Plaintiff came to have ingested the medications and

what impact their ingestion had on her. As we have already

noted, Plaintiff alleged that a specific error that occurred

during the transfer process resulted in the administration of

these medications to her. Thus, the absence of chemical
 -10-
evidence that Plaintiff ingested the medications upon which her

claim rests does not suffice to establish that Plaintiff is

entitled to rely on the doctrine of res ipsa loquitur.

In addition, we do not believe that Plaintiff is entitled

to rely on the doctrine of res ipsa loquitur in this case given

that expert testimony would be necessary to establish the cause

of the injury that Plaintiff claims to have suffered. In

Axelbank, the plaintiff alleged that she had been injured as the

result of the fact that the defendant negligently prescribed a

particular medication for her and asserted that the existence of

negligence on the part of the defendant could be established

without the benefit of expert testimony, so that the plaintiff

was entitled to proceed on a res ipsa loquitur theory.

Axelbank, __ N.C. App. at __, 730 S.E.2d at 843. In rejecting

the plaintiff’s argument, this Court concluded that “a lay

person would not be able to determine that plaintiff’s injury

was caused by Seroquel or be able to determine that Dr. Axelbank

was negligent in prescribing the medication to plaintiff without

the benefit of expert witness testimony.” Id. In this case, as

in Axelbank, a jury would not be able to determine whether

Plaintiff’s injury resulted from the ingestion of Xanax, Geodon,

and Lithium without having the benefit of expert witness

testimony, since a lay juror would not necessarily know what
 -11-
these medications are, how they affect the human body, and how

they might be expected to affect Plaintiff specifically.

In Plaintiff’s view, Axelbank has no bearing on the proper

resolution of this case since Axelbank involved a situation in

which the defendant allegedly prescribed the wrong medication

while this case involves a situation in which errors were made

in transferring a list of medications from one document to

another. According to Plaintiff, one need not be a medical

expert to know that the medication list was erroneously

transferred and that this error constituted negligence. In

making this argument, however, Plaintiff appears to confuse the

meaning of “negligence” as used in the legal context with the

meaning of the same word as used in common parlance. Although

the inaccurate copying of a medication list might be understood

as a negligent act, that fact, standing alone, does not suffice

to establish a valid negligence-based claim for the recovery of

damages, which also requires proof that the negligent act on

which the plaintiff’s claim rests resulted in the injury for

which the plaintiff seeks redress. Gibson v. Ussery, 196 N.C.

App. 140, 143, 675 S.E.2d 666, 668 (2009). Assuming, without in

any way deciding, that Plaintiff can establish a deviation from

the applicable standard of care by showing the existence of the

copying error upon which she relies, Plaintiff cannot
 -12-
demonstrate that the injuries of which she complains resulted

from this specific negligent act in the absence of expert

testimony.2 Simply put, since “the average juror [is] unfit to

determine whether [P]laintiff’s [somnolence and lethargy] would

rarely occur in the absence of” the ingestion of Xanax, Geodon,

and Lithium, Schaffner v. Cumberland County Hosp. System, Inc.,

77 N.C. App. 689, 692, 336 S.E.2d 116, 118 (1985), disc. reviews

denied, 316 N.C. 195, 341 S.E.2d 578-79 (1986), Plaintiff’s

attempt to distinguish our decision in Axelbank is not

persuasive. As a result, since Plaintiff has not established

that she successfully pled a claim against Defendants on the

basis of the doctrine of res ipsa loquitur, the trial court

correctly dismissed her complaint.

III. Conclusion

Thus, for the reasons set forth above, we conclude that

none of Plaintiff’s challenges to the trial court’s order have

2
In addition, we note that, even if a lay person could be
expected to understand the effect that the specific medications
that Plaintiff claims to have negligently ingested would have on
the human body, a successful plaintiff would still be required
to obtain expert proof that her injuries resulted from the
ingestion of these specific medications given that the
“Admission Medication Orders” indicate that over a dozen
medications had been prescribed for Plaintiff and that expert
medical testimony would be necessary to explain the interactions
among this collection of medications and whether the injuries
that Plaintiff claims to have sustained could have resulted from
the ingestion of one or more of these other medications.
 -13-
merit. As a result, the trial court’s order should be, and

hereby is, affirmed.

AFFIRMED.

Judges ELMORE and DAVIS concur.