Medical Malpractice_prefiling certification_ordinary negligence
claim against hospital
Assuming that N.C.G.S. § 1A-1, Rule 9(j) is constitutional,
the medical malpractice pre-filing certification requirement did
not bar corporate negligence claims against a hospital because
plaintiff did not allege that the hospital committed medical
malpractice. Rule 9(j) certification is not necessary for
ordinary negligence claims, even if defendant is a health care
provider.
Faison & Gillespie, by William Faison and John W. Jensen, for
plaintiff-appellant.
Sharpless & Stavola, by Joseph M. Stavola and Joseph P. Booth,
III for defendant-appellant.
WYNN, Judge.
We recited the facts of this matter in Sharpe v. Worland, 137
N.C. App. 82, 527 S.E.2d 75 (2000). In brief, Lassie M. Sharpe
brought claims against Wesley Long Community Hospital and others
for alleged injuries arising from the negligent provision of
medical care to her.
On 15 November 1993, an anesthesiologist gave Ms. Sharpe an
epidural for post-surgery pain management. The anesthesiologist
and his practice group had the exclusive contractual right toprovide anesthesia services at the Wesley Long Community Hospital.
While administering the epidural, the anesthesiologist injured Ms.
Sharpe's spinal cord resulting in injury to her including an
inability to walk.
On 21 May 1999, Wesley Long Community Hospital filed a Motion
to Dismiss, citing plaintiff's failure to comply with Rule 9(j) of
the North Carolina Rules of Civil Procedure. On 13 July 1999, the
trial court dismissed all of plaintiff's claims including her
common law corporate negligence claims, res ipsa loquitor claims,
and respondeat/vicarious liability claims against Wesley Long
Community Hospital.
(See footnote 1)
Recently in Anderson v. Assimos, 146 N.C. App. 339, 553 S.E.2d
62 (2001), a different panel of this Court held that the pre-filing
certification of Rule 9 (j) of the North Carolina Rules of Civil
Procedure was unconstitutional and void. Thus, we must reverse the
trial court's dismissal of this matter on the basis of Rule 9(j).
Nonetheless, we hold that even if Rule 9(j) was a constitutionally
affirmed law, it would not control the outcome of plaintiff's claim
of corporate negligence because it was based on ordinary negligence
rather than medical malpractice.
In its brief, Wesley Long Community Hospital argued that since
plaintiff's corporate negligence claims involved hospital staff,the trial court properly dismissed her action for failure to comply
with Rule 9(j). It further contended that an action against a
hospital arising out of furnishing or failure to furnish
professional services in the performance of medical care is a
“medical malpractice action” action. See N.C. Gen. Stat. § 90-
21.11 (2001).
Rule 9(j) requires that, at the time a plaintiff files a
complaint, the plaintiff must certify that the medical care at
issue has been reviewed by a witness reasonably expected to qualify
as an expert under Rule 702 of the Rules of Evidence, and who is
willing to testify that the medical care did not comply with the
applicable standard of care. See N.C. Gen. Stat. § 1A-1, Rule 9
(j) (1999). Compliance with Rule 9(j) must be made at the time the
complaint is filed. See Keith v. North Hosp. District of Surry
County, 129 N.C. App. 402, 499 S.E.2d 200, disc. review denied, 348
N.C. 693, 511 S.E.2d 646 (1998).
However, nowhere in Ms. Sharpe's allegations does she claim
that the Wesley Long Community Hospital committed medical
malpractice, breached applicable standard of care or provided
medical care to Ms. Sharpe. Instead, the Complaint alleged that
Wesley Long Community Hospital violated direct duties owed to
plaintiff. Rule 9(j) certification is not necessary for ordinary
negligence claims, even if defendant is a health care provider.
See Lewis v. Setty, 130 N.C. App. 606, 608, 503 S.E.2d 673, 674
(1998). We find ample authority that Wesley Long Community
Hospital's independent duties owed to Ms. Sharpe can be judged bya “reasonable person standard” which does not require expert
testimony at trial. See Muse v. Charter Hosp. of Winston Salem,
Inc., 117 N.C. App. 468, 452 S.E.2d 589, review on add'l issues
denied, 340 N.C. 114, 455 S.E.2d 663, decision affirmed, 342 N.C.
403, 464 S.E.2d 44 (1995); Blanton v. Moses H. Cone Hosp., Inc.,
319 N.C. 372, 354 S.E.2d 455 (1987); Burns v. Forsyth County
Memorial Hosp. Auth., Inc., 81 N.C. App. 556, 344 S.E.2d 839
(1986).
Finally, we note that since this Court's decision in Anderson
remains on appeal to our Supreme Court as a matter of right, we
summarily hold that if Rule 9(j) was indeed constitutionally sound,
then our decision on the remaining issues in this appeal would be:
(1) No expert was needed to support plaintiff's claim based on res
ipsa loquitor; (2) Plaintiff did not satisfy the requirements of
Rule 9(j) with respect to the claims based on nursing care; and,
(3) Plaintiff's notice of appeal to this Court was timely filed.
Reversed.
Judges WALKER and THOMAS concur.
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