Margaret Littlepaige v. United States

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1367

MARGARET LITTLEPAIGE, Personal representative of the Estate
of Alfred Littlepaige, deceased,

Plaintiff − Appellant,

v.

UNITED STATES OF AMERICA,

Defendant – Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (5:10-cv-00571-H)

Argued: May 14, 2013 Decided: June 12, 2013

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Agee wrote the majority
opinion, in which Judge Duncan joined. Judge Davis wrote a
dissenting opinion.

ARGUED: Peter Joseph Sarda, CREECH LAW FIRM, PA, Raleigh, North
Carolina, for Appellant. Shailika K. Shah, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON
BRIEF: Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, W. Ellis Boyle, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

2
AGEE, Circuit Judge:

Margaret Littlepaige (“Mrs. Littlepaige”) appeals the

district court’s dismissal of her Federal Tort Claims Act

(“FTCA”) complaint against the United States. The court

concluded that Mrs. Littlepaige’s complaint sounded in medical

malpractice under North Carolina law, and was therefore barred

in the absence of a state medical malpractice certification,

which had not been filed. For the reasons discussed below, we

affirm the judgment of the district court.

I.

In September 2007, Alfred Littlepaige (“Mr. Littlepaige”),

a veteran of the Korean War and husband of Mrs. Littlepaige, was

admitted to the Durham Veterans Administration (“VA”) Medical

Center (“VA Hospital”) in Durham, North Carolina, suffering from

advanced stages of dementia. 1 Mr. Littlepaige was placed on a

“falls precaution,” a procedure which the complaint describes as

a period during which “the [VA Hospital] undertook to provide

special care and observation to prevent [Mr. Littlepaige] from

falling to the ground while hospitalized.” (J.A. 3.)

1
Because this appeal arises out of the grant of a motion to
dismiss, we accept as true all well-pleaded facts and construe
those facts in the light most favorable to Mrs. Littlepaige, the
plaintiff and nonprevailing party. See Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

3
 On September 21, 2007, hospital staff found Mr. Littlepaige

lying on the floor beside his bed. After a cursory examination,

VA Hospital attendants determined that Mr. Littlepaige was not

injured. The next day, Mrs. Littlepaige found Mr. Littlepaige

again lying on the floor, bruised and unable to stand. On

September 25, four days after Mr. Littlepaige was first found on

the floor, he was given an x-ray exam for an unrelated

intestinal problem. In the course of reviewing the x-ray

results, VA physicians discovered that Mr. Littlepaige had a

fractured hip. Shortly thereafter, Mr. Littlepaige underwent

surgery to correct the hip fracture. 2

In 2009, Mrs. Littlepaige, on behalf of her late husband’s

estate, filed an administrative claim with the VA for damages

resulting from the injuries Mr. Littlepaige allegedly suffered

while a patient at the VA Hospital. The VA later denied Mrs.

Littlepaige’s administrative claim, and in 2010, she filed a

complaint against the United States pursuant to the FTCA in the

United States District Court for the Eastern District of North

Carolina. In her complaint, Mrs. Littlepaige alleged that as a

“result of the failure of [the VA Hospital] to properly attend

2
Mr. Littlepaige died sometime between September 2007, and
the commencement of this litigation in December 2010. The
record does not reflect his cause of death, but there is no
allegation that the VA Hospital’s alleged negligence contributed
to Mr. Littlepaige’s death.

4
to [Mr. Littlepaige, he] suffered the pain of a hip fracture,

the pain of surgical repair for his broken hip, permanent loss

of use of his leg and continued pain and suffering.” (J.A. 3-

4). Mrs. Littlepaige further alleged that “[f]alls by a patient

under a falls precaution should not occur with the exercise of

due care by Defendant [VA Hospital].” (J.A. 3). The complaint

also included the allegation that “[a]s a direct and proximate

result of the . . . [VA Hospital’s] failure to diagnose the

broken hip and because of [the VA Hospital’s] failure to

properly treat [Mr. Littlepaige, he] suffered pain at the hands

of the [VA Hospital.]” (J.A. 4).

The government filed a motion to dismiss the complaint

because no certification as required by Rule 9(j) of the North

Carolina Rules of Civil Procedure was included in the pleadings. 3

Mrs. Littlepaige responded to the motion to dismiss, arguing

that a Rule 9(j) certification is unnecessary because she pleads

only ordinary negligence, not a claim for medical malpractice.

In the alternative, Mrs. Littlepaige contended that even if she

was raising a medical malpractice claim, her complaint falls

3
In essence, Rule 9(j) requires that, prior to the filing
of a medical malpractice complaint in North Carolina, a
plaintiff must certify that an expert has reviewed the medical
malpractice claim and is prepared to testify that the defendant
did not meet the standard of care (i.e., that the medical
malpractice claim has merit).

5
within an exception to Rule 9(j) for pleadings that “allege[]

facts establishing negligence under the existing common-law

doctrine of res ipsa loquitur.” N.C. Gen. Stat. § 1A-1, Rule

9(j)(3).

The district court granted the government’s motion to

dismiss, finding that Mrs. Littlepaige’s “claims about

defendant’s execution of its falls precaution plan and failure

to properly diagnose his injuries is a medical malpractice

action under North Carolina law.” (J.A. 41). The court also

held that “the exception for res ipsa loquitur does not apply

here.” (J.A. 42).

Mrs. Littlepaige noted a timely appeal, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Mrs. Littlepaige argues on appeal that the district court

erred in dismissing her FTCA complaint for two reasons: (1) her

complaint sounded in ordinary negligence, thus obviating the

need for a Rule 9(j) certification; and (2) in the alternative,

her complaint adequately stated a claim for medical malpractice

under the common law doctrine of res ipsa loquitur, thus falling

into an exception to Rule 9(j). For the following reasons, we

disagree with Mrs. Littlepaige and affirm the judgment of the

district court.

6
 A.

This Court reviews de novo the grant of a Rule 12(b)(6)

motion to dismiss for failure to state a claim. Coleman v. Md.

Ct. App., 626 F.3d 187, 190 (4th Cir. 2010). “To survive a

motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).

B.

A plaintiff may recover against the United States only to

the extent that it has expressly waived sovereign immunity.

Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005)

(citing United States v. Sherwood, 312 U.S. 584, 586 (1941)).

Congress waived the sovereign immunity of the United States for

certain torts committed by federal employees when it enacted the

FTCA in 1946. Kerns v. United States, 585 F.3d 187, 194 (4th

Cir. 2009) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)).

However, the FTCA is a limited waiver of immunity, imposing tort

liability on the United States only “in the same manner and to

the same extent as a private individual under like

circumstances,” 28 U.S.C. § 2674, and only to the extent that “a

private person[ ] would be liable to the claimant in accordance

7
with the law of the place where the act or omission occurred,”

id. § 1346(b)(1). In other words, a claimant “has an FTCA cause

of action against the government only if she would also have a

cause of action under state law against a private person in like

circumstances.” Miller v. United States, 932 F.2d 301, 303 (4th

Cir. 1991). Thus, the substantive law of each state establishes

the cause of action. Kerns, 585 F.3d at 194; Unus v. Kane, 565

F.3d 103, 117 (4th Cir. 2009). In the case at bar, that

substantive law is the state law of North Carolina.

Pursuant to Rule 9(j),

[a]ny complaint alleging medical malpractice by a
health care provider . . . shall be dismissed unless:
(1) [t]he 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 . . . and who is willing to testify
that the medical care did not comply with the
applicable standard of care.

N.C. Gen. Stat. § 1A-1, Rule 9(j). As the Supreme Court of

North Carolina has explained,

[t]he legislature specifically drafted Rule 9(j) to
govern the initiation of medical malpractice actions
and to require physician review as a condition for
filing the action. The legislature’s intent was to
provide a more specialized and stringent procedure for
plaintiffs in medical malpractice claims through Rule
9(j)’s requirement of expert certification prior to
the filing of a complaint.

Thigpen v. Ngo, 558 S.E.2d 162, 166 (N.C. 2002).

8
 In an action under the FTCA, “[w]e must rule as the North

Carolina courts would, treating decisions of the Supreme Court

of North Carolina as binding, and departing from an intermediate

court’s fully reasoned holding as to state law only if convinced

that the state's highest court would not follow that holding.”

Iodice v. United States, 289 F.3d 270, 275 (4th Cir. 2002)

(internal quotation marks and alteration omitted). As to Rule

9(j), the Supreme Court of North Carolina has stated that

“medical malpractice complaints [in North Carolina] have a

distinct requirement of expert certification.” Thigpen, 558

S.E.2d at 165 (emphasis added). The district courts in this

circuit are also unanimous that a Rule 9(j) certification is

required to sustain a medical malpractice action under the FTCA

in North Carolina. See, e.g., Lauer v. United States, No.

1:12cv41, 2013 WL 566124, at *4 (W.D.N.C. Feb 13, 2013); Baker

v. United States, No. 5:11-CT-3070-D, 2013 WL 211254, at *5

(E.D.N.C. Jan. 18, 2013); Hall v. United States, No. 5:10-CT-

3220-BO, 2013 WL 163639, at *3 (E.D.N.C. Jan. 15, 2013);

Muhammad v. United States, No. 5:11-CT-3126-FL, 2012 WL 3957473,

at *3 (E.D.N.C. Sept. 10, 2012). It thus appears that, where

applicable, a Rule 9(j) certification is a mandatory requirement

for a plaintiff in a North Carolina medical malpractice action.

We turn first, therefore, to Mrs. Littlepaige’s contention

that her complaint sounded in ordinary negligence, thus avoiding

9
the Rule 9(j) expert certification requirement. The North

Carolina Court of Appeals has provided a helpful (if not

precedential) distinction between ordinary negligence and

medical malpractice under North Carolina law in the context of a

medical malpractice case.

According to N.C. Gen. Stat. § 90-21.11, “the term
‘medical malpractice action’ means 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.” When
nurses make “medical decision[s] requiring clinical
judgment and intellectual skill,” they are providing
professional services, and therefore the action
against them must be certified per Rule 9(j).
Sturgill v. Ashe Mem'l Hosp., Inc., 652 S.E.2d 302,
306 (N.C. Ct. App. 2007), rev. denied, 658 S.E.2d 662
(N.C. 2008). Corporate negligence actions brought
against hospitals which pertain to clinical patient
care sound in medical malpractice, while such actions
which arise out of policy, management, or
administrative decisions sound in ordinary negligence.
Estate of Waters v. Jarman, 547 S.E.2d 142, 145 (N.C.
Ct. App. 2001). Examples of policy, management, or
administrative decisions include “granting or
continuing hospital privileges, failing to monitor or
oversee performance of the physicians, credentialing,
and failing to follow hospital policies[.]” Id. “In
determining whether or not Rule 9(j) certification is
required, the North Carolina Supreme Court has held
that ‘pleadings have a binding effect as to the
underlying theory of plaintiff's negligence claim.’”
Sturgill, 652 S.E.2d at 305 (quoting Anderson v.
Assimos, 572 S.E.2d 101, 102 (N.C. 2002)).

Deal v. Frye Reg’l Med. Ctr., Inc., 691 S.E.2d 132 (table), 2010

WL 522727, at *2 (N.C. Ct. App. Feb. 16, 2010) (alterations in

original).

10
 i.

Applying these standards to the case at bar, it is clear

that Mrs. Littlepaige’s complaint sounds in medical malpractice,

not ordinary negligence. Mrs. Littlepaige’s complaint alleges,

inter alia,

• “From September 18 through September 25, 2007, [Mr.

Littlepaige] was under a “falls precaution” during which

the defendant undertook to provide special care and

observation to prevent the defendant from falling to the

ground while hospitalized.” (J.A. 3 (emphasis added).)

• “Falls by a patient under a falls precaution should not

occur with the exercise of due care by the Defendant[.]”

(J.A. 3.)

• “As a direct and proximate result of [the VA Hospital’s]

failure to provide adequate supervision, because of [the VA

Hospital’s] failure to diagnose the broken hip and because

of the [VA Hospital’s] failure to properly treat [Mr.

Littlepaige, he] suffered pain at the hands of [the VA

Hospital].” (J.A. 4 (emphasis added).)

The plain language of the complaint demonstrates that Mrs.

Littlepaige’s action is one for medical malpractice as that term

is applied under North Carolina law. As recounted above, the

North Carolina statute defines “medical malpractice action” as

“[a] civil action for damages for personal injury or death

11
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.” N.C. Gen. Stat. § 90-

21.11(2)a. The allegations in the complaint in this case fit

squarely within that definition. The complaint describes the

falls precaution as a “special duty” that can only arise as a

consequence of the provision of professional medical services.

The complaint alleges harm as a consequence of the “failure to

diagnose” and “failure to treat” Mr. Littlepaige. In short, the

complaint sought damages “arising out of the furnishing or

failure to furnish professional services in the performance of

. . . health care by a health care provider.” N.C. Gen. Stat.

§ 90-21.11(2)a. It thus alleged medical malpractice, not

ordinary negligence.

Furthermore, North Carolina law leaves no room for pleading

in the alternative under the facts of this case. The facts

alleged in the complaint are that the VA Hospital is a “health

care provider,” and that, as a result of its provision of

“professional services” Mr. Littlepaige suffered injury. Even

the most liberal construction of Mrs. Littlepaige’s complaint

cannot escape the ambit of Rule 9(j) because it plainly pleads a

“medical malpractice action” under North Carolina law.

Our conclusion that Mrs. Littlepaige’s complaint sounds in

medical malpractice is consistent with Deal, a persuasive

12
opinion of the North Carolina Court of Appeals. 4 In Deal, the

court considered and rejected a claim virtually identical to

that brought by Mrs. Littlepaige here. The Deal plaintiff

brought a claim that a hospital’s failure to conduct a “Fall

Risk Screen Assessment” resulted in injury. Deal, 2010 WL

522727 at *1. The plaintiff failed to file a Rule 9(j)

certification, the complaint was dismissed, and the plaintiff

argued on appeal that the case sounded in ordinary negligence

only. The North Carolina Court of Appeals rejected that

contention, concluding that the fall risk screening process

involved “the rendering of professional services” that required

“clinical judgment and intellectual skill.” Id. at *4.

Accordingly, Rule 9(j) certification was required.

We see little to distinguish this case from Deal. In

determining whether the VA Hospital staff properly implemented

4
Pursuant to North Carolina Rules of Appellate Procedure,
citation to unpublished opinions of the North Carolina Court of
Appeals is “disfavored,” except where the “unpublished opinion
has precedential value to a material issue in the case and . . .
there is no published opinion that would serve as well.” N.C.
R. App. P. 30(e)(3); see also State ex rel. Moore Cnty. Bd. of
Educ. v. Pelletier, 606 S.E.2d 907, 909 (N.C. Ct. App. 2005)
(“[C]itation to unpublished opinions is intended solely in those
instances where the persuasive value of a case is manifestly
superior to any published opinion.”). In this instance, the
facts of Deal are so closely aligned with the facts of this case
that we believe that “no published opinion . . . would serve as
well” as Deal to support the proposition that Mrs. Littlepaige’s
complaint sounds in medical malpractice as a matter of law. See
N.C. R. App. P. 30(e)(3).

13
the falls precaution plan, the district court would undoubtedly

have to resolve issues related to standards of medical care and

the medical judgment of VA Hospital staff. This is not a

premises liability action or an action challenging some non-

medical aspect of hospital management. Cf. Estate of Waters v.

Jarman, 547 S.E.2d 142, 145 (N.C. Ct. App. 2001) (holding that

the reasonably prudent person standard of care applies in suits

claiming negligence on the part of the hospital for

administrative or management deficiencies). Rather, by the

plain terms of the complaint, Mrs. Littlepaige challenged

aspects of her husband’s medical care. We conclude on these

facts that the claim sounds in medical malpractice, the

strictures of Rule 9(j) apply, and Mrs. Littlepaige failed to

comply with that rule.

ii.

In the alternative, Mrs. Littlepaige argues that if her

claim sounds in medical malpractice, she was not required to

file a Rule 9(j) certification because she adequately pled under

the common law doctrine of res ipsa loquitur. Accordingly, she

argues that her claim falls into an exception to Rule 9(j). See

N.C. Gen. Stat. § 1A-1, Rule 9(j)(3). Notwithstanding the fact

that Mrs. Littlepaige did not mention the doctrine of res ipsa

loquitur in her complaint in this case, we do not agree that the

14
facts alleged would give rise to application of that common law

doctrine.

Res ipsa loquitur is an exception, not the rule, to medical

malpractice cases in North Carolina.

To warrant the submission of a malpractice case to the
jury there must be proof of facts or circumstances
which permit a legitimate inference of actionable
negligence on the part of the physician, surgeon, or
dentist. A showing of an injurious result is not
enough. The doctrine of res ipsa loquitur cannot be
relied on to supply deficiencies in the proof.

Boyd v. Kistler, 155 S.E.2d 208, 210 (N.C. 1967). The North

Carolina Court of Appeals “has determined that in medical

malpractice cases, the doctrine of res ipsa loquitur should be

restrictively applied, because the average juror is unfit to

determine whether a plaintiff's injury would rarely occur in the

absence of negligence.” Rowell v. Bowling, 678 S.E.2d 748, 751

(N.C. Ct. App. 2009) (quotation marks and alterations omitted).

Previously, this Court has held that the doctrine of
res ipsa loquitur applies in situations where the
facts or circumstances accompanying an injury by their
very nature raise a presumption of negligence on the
part of a defendant. It is appropriate to use the
doctrine when no proof of the cause of an injury is
available, the instrument involved in the injury is in
the exclusive control of a defendant, and the injury
is of a type that would not normally occur in the
absence of negligence.

Id. (internal quotation marks, quotation marks, citation, and

alterations omitted). Accordingly, there is a strong

15
presumption under North Carolina law that, in the medical

malpractice context, res ipsa loquitur will not apply.

For the doctrine to apply in a medical malpractice
claim, a plaintiff must allege facts from which a
layperson could infer negligence by the defendant
based on common knowledge and ordinary human
experience. Diehl v. Koffer, 536 S.E.2d 359, 362
(N.C. Ct. App. 2000); see Bowlin [v. Duke Univ.], 423
S.E.2d [320,] 323 [(N.C. Ct. App. 1992)] (concluding
that the doctrine of res ipsa loquitur was
inappropriate where a layperson, without the benefit
of expert testimony, would have no basis for
concluding the physician was negligent in extracting
bone marrow merely because the plaintiff's nerve was
injured during the procedure); Grigg v. Lester, 401
S.E.2d 657, 659 (N.C. Ct. App. 1991) (holding that the
doctrine of res ipsa loquitur did not apply in a case
involving a tear in the plaintiff's uterus during a
caesarean section because a layperson would not be
able to determine that the force exerted by the
physician during the procedure was improper or
excessive).

Smith v. Axelbank, 730 S.E.2d 840, 843 (N.C. Ct. App. 2012).

North Carolina courts have thus articulated a bright-line rule

that a malpractice claim may not be brought on a theory of res

ipsa loquitur unless the facts alleged are such that “the

negligence complained of must be of the nature that a jury—

through common knowledge and experience—could infer.” Diehl v.

Koffer, 536 S.E.2d 359, 362 (N.C. Ct. App. 2000).

We have reviewed the complaint and conclude that the facts

alleged, even when construed liberally, are not such that a

layperson could infer negligence on the part of the VA Hospital

based on common knowledge. Mrs. Littlepaige alleged that Mr.

16
Littlepaige was placed on a falls precaution, was twice found on

the floor, and some days later an injury was diagnosed. On the

allegations in the complaint, Mr. Littlepaige could have been

injured prior to his admission to the VA Hospital, or his

injuries could have come about notwithstanding the exercise of

due care by VA Hospital staff. While Mrs. Littlepaige need not

eliminate every cause, other than the VA Hospital’s negligence,

for Mr. Littlepaige’s injuries, the universe of uncertainties in

this case is so vast as to defeat the inference of negligence

necessary to advance a claim under the doctrine of res ipsa

loquitur. We therefore conclude that Mrs. Littlepaige has not

adequately pled res ipsa loquitur, and thus the exception to

Rule 9(j) does not apply. Because a private person under like

circumstances would not be liable for medical malpractice under

North Carolina law, the district court did not err in dismissing

Mrs. Littlepaige’s FTCA complaint.

III.

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

17
DAVIS, Circuit Judge, dissenting:

Because, in one fell swoop, my friends in the majority

manage to misapply both federal procedural law and North

Carolina substantive law, I respectfully dissent.

“[R]eading the complaint ‘liberally in favor of the

plaintiff,’” Sciolino v. City of Newport News, Va., 480 F.3d

642, 651 (4th Cir. 2007) (quoting Anderson v. Found. for

Advancement, Educ. and Emp’t of Am. Indians, 155 F.3d 500, 505

(4th Cir. 1998) (citing, inter alia, Fed. R. Civ. P. 8)), Mrs.

Littlepaige states a claim for ordinary negligence. She alleges

that her husband was “under the exclusive care of [the VA

Hospital],” the VA Hospital failed to “observe and monitor

[him],” her husband fell from his bed, and he “suffered a broken

hip and bruises and contusions.” J.A. 2–3. “[A] jury [is] fully

capable without aid of expert opinion to apply the standard of

the reasonably prudent man” to any evidence in support of these

allegations. Norris v. Rowan Mem’l Hosp., Inc., 205 S.E.2d 345,

348 (N.C. Ct. App. 1974). Indeed, such assertions are quite

similar to claims of ordinary negligence that arise out of a

hospital’s decision not “to offer a cane to a patient who has

trouble walking,” Horsley v. Halifax Reg’l Med. Ctr., Inc., 725

S.E.2d 420, 422 (N.C. Ct. App. 2012); a hospital’s alleged

failure “to raise the bed rails on [a patient’s] bed” or

“instruct her to use the bedside call button to obtain

18
assistance in going to the bathroom,” Norris, 205 S.E.2d at 348;

or a nursing home’s alleged failure to “observ[e] and

supervis[e] . . . [a resident] . . . smok[ing] in [a] designated

smoking area” to prevent her from burning herself, Taylor v.

Vencor, Inc., 525 S.E.2d 201, 203 (N.C. Ct. App. 2000). In

short, the allegations in the complaint quoted in this paragraph

did not arise “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,” where

“professional services” means “an act or service arising out of

a vocation, calling, occupation, or employment involving

specialized knowledge, labor, or skill, and the labor [or] skill

involved is predominantly mental or intellectual, rather than

physical or manual.” Lewis v. Setty, 503 S.E.2d 673, 674

(N.C.App. 1998) (emphasis, citations, and internal quotations

omitted). 1

1
In Lewis, the court held that damages claims based on the
negligent movement of a patient from an examination table to a
wheelchair in a physician’s office did not sound in medical
malpractice. The court explained its holding as follows, in
part:

In this case, the removal of the plaintiff from the
examination table to the wheelchair did not involve an
occupation involving specialized knowledge or skill,
as it was predominately a physical or manual activity.
It thus follows that the alleged negligent acts of the
defendant do not fall into the realm of professional
medical services. Any negligence which may have
(Continued)
19
 That the pleading also asserts facts giving rise to a

medical malpractice claim does not warrant dismissal of the

entire complaint for failure to comply with Rule 9(j) of the

North Carolina Rules of Civil Procedure. Rule 8 of the Federal

Rules of Civil Procedure, which, under the fulsome progeny of

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), governs pleading

in this federal action, 2 permits a party to “set out 2 or more

statements of a claim,” and “as many separate claims . . . as it

has, regardless of consistency.” Fed. R. Civ. P. 8(d). Moreover,

“[p]leadings must be construed so as to do justice,” Fed. R.

Civ. P. 8(e), and “[a]n overly restrictive reading of a

complaint is inconsistent with th[is] mandate,” Starks v.

occurred when the defendant and Ms. Norris attempted
to move the plaintiff from the examination table back
to his wheelchair falls squarely within the parameters
of ordinary negligence. See Angela Holder, Medical
Malpractice Law 175 (1975) (actions involving falls
from beds or examining tables, equipment failures, or
other types of accidents in a doctor’s office differ
from medical malpractice actions because they do not
involve negligent treatment).

Lewis, 503 S.E.2d at 674. This reasoning from a reported,
precedential opinion of the North Carolina intermediate
appellate court should count for more than Deal v. Frye Reg’l
Med. Ctr., Inc., 691 S.E.2d 132 (table), 2010 WL 522727 (N.C.
Ct. App. Feb. 16, 2010), on which the majority inexplicably
relies.
2
Thus, the majority’s assertion that “North Carolina law
leaves no room for pleading in the alternative under the facts
of this case,” ante, at 12, misses the mark by a wide margin.

20
Perloff Bros., Inc., 760 F.2d 52, 55 (3d Cir. 1985). Because the

complaint in this case can be construed (indeed, it is

impossible to construe it any other way) to allege a claim of

ordinary negligence, we should reverse the district court’s

order dismissing the complaint and remand this case for further

proceedings.

21