An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-1263

NORTH CAROLINA COURT OF APPEALS

Filed: 16 August 2005

JOAN B. MOORE,
    Plaintiff-Appellant,

v .                         Gaston County
                            No. 03 CvS 4181
GASTON MEMORIAL HOSPITAL,
INCORPORATED and
WILLIAM S. WATKINS, M.D.,
    Defendants-Appellees.

    Appeal by plaintiff from order entered 24 June 2004 by Judge Yvonne Mims Evans in Superior Court, Gaston County. Heard in the Court of Appeals 11 May 2005.

    Thomas A. McNeely for plaintiff-appellant.

    Womble Carlyle Sandridge & Rice, PLLC, by Sara R. Lincoln, for defendant-appellee, William S. Watkins, M.D.
    
    

    McGEE, Judge.

    Joan B. Moore (plaintiff) appeals from the trial court's order dismissing her complaint against William S. Watkins, M.D. (defendant).
    Defendant was licensed in North Carolina to practice internal medicine with a sub-specialty certification in gastroenterology. As part of his practice, defendant had privileges to treat and admit patients to Gaston Memorial Hospital (Gaston Memorial). Plaintiff was admitted to Gaston Memorial's Outpatient Surgery Department on 10 August 2000 for defendant to perform an endoscopic examination for treatment of a gastroenterological condition. Prior to sedation, plaintiff provided defendant with consent for defendant to perform both an endoscopic examination and a dilation procedure. The dilation procedure was to be performed if defendant felt such a procedure was necessary and justified based on the results of the endoscopic examination.
    After performing the endoscopic examination, defendant determined that a dilation procedure was warranted and performed the dilation procedure on plaintiff. Plaintiff was discharged from Gaston Memorial but returned later that same day, complaining of pain in her throat. Defendant readmitted plaintiff to Gaston Memorial and determined that plaintiff's esophagus was perforated. Plaintiff remained under defendant's care at Gaston Memorial for thirty-nine days. As part of plaintiff's treatment regimen, defendant placed plaintiff on Gentamicin, an antibiotic, that was administered to plaintiff by Gaston Memorial staff. In prescribing Gentamicin, defendant indicated that the drug should be given to plaintiff "per pharmacy protocol."
    Plaintiff filed a complaint against defendant and alleged that defendant negligently perforated plaintiff's esophagus and negligently administered a toxic dose of Gentamicin. For the claim that defendant negligently perforated plaintiff's esophagus, plaintiff also alleged negligence under the doctrine of res ipsa loquitur. Defendant filed a motion to dismiss on 14 May 2004, claiming that plaintiff failed to state a claim upon which relief could be granted, pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). Defendant also argued that plaintiff failed to allegethat she had a Rule 9(j) expert who was qualified to testify under Rule 702 of the N.C. Rules of Evidence. See N.C. Gen. Stat. § 1A- 1, Rule 9(j) (2003); N.C. Gen. Stat. § 8C-1, Rule 702 (2003). The trial court granted defendant's motion to dismiss plaintiff's complaint as to defendant in an order entered 24 June 2004. The claim against Gaston Memorial is not at issue in this appeal.

I.    

    Because the trial court did not dismiss the claim against Gaston Memorial, plaintiff's appeal from the trial court's order is interlocutory; therefore, we must first determine whether plaintiff's appeal is properly before this Court. "'An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.'" Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C. App. 504, 507, 593 S.E.2d 808, 810, disc. review denied, 358 N.C. 739, 603 S.E.2d 126 (2004) (quoting Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)). Though otherwise untimely, interlocutory orders are immediately appealable when they affect the substantial rights of a party. Estate of Redding v. Welborn, ___ N.C. App. ___, ___, 612 S.E.2d 664, 668 (2005). "A substantial right is affected when '(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.'" Id. at ___, 612 S.E.2d at 668 (quoting North Carolina Dept. of Transp. v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995)).    Plaintiff contends that both defendant's and Gaston Memorial's liability for the injuries resulting from the Gentamicin regimen is based in part on the actions of Gaston Memorial's pharmacy staff or other agents or employees. Plaintiff argues that these pharmacy staff members, agents, or employees were simultaneously acting as agents of both defendant and Gaston Memorial. Therefore, the dismissal of plaintiff's claims against defendant could lead to multiple trials of the same factual issues, possibly resulting in inconsistent verdicts. We find that a substantial right is affected and that this appeal is properly before our Court.
II.

    Plaintiff argues that the trial court erred in dismissing her complaint against defendant for failure to state a claim upon which relief may be granted pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). In reviewing the dismissal of a case under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6),
        "the standard of review is '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.' The complaint must be liberally construed, and the [trial] court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support [the plaintiff's] claim which would entitle [the plaintiff] to relief."

Block v. County of Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419 (2000) (quoting Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987)). A complaint may be dismissed under Rule 12(b)(6) "(1) when the complaint on its face reveals that no lawsupports [the] plaintiff's claim; (2) when the complaint reveals on its face the absence of fact sufficient to make a good claim; [or] (3) when some fact disclosed in the complaint necessarily defeats the plaintiff's claim." Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985).
A.

    Plaintiff alleges in her complaint that, under the doctrine of res ipsa loquitur, defendant was negligent when defendant perforated plaintiff's esophagus. Res ipsa loquitur addresses "'situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of [a] defendant.'" Howie v. Walsh, ___ N.C. App. ___, ___, 609 S.E.2d 249, 251 (2005), (quoting Bowlin v. Duke University, 108 N.C. App. 145, 149, 423 S.E.2d 320, 322 (1992), disc. review denied, 333 N.C. 461, 427 S.E.2d 618 (1993)). Res ipsa loquitur is applicable "'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.'" Howie, ___ N.C. App. at ___, 609 S.E.2d at 251 (quoting Bowlin, 108 N.C. App. at 149, 423 S.E.2d at 322).
    For a res ipsa loquitur claim to be successful, a plaintiff must, "'without the assistance of expert testimony,'" be able to show that a defendant's negligent act caused a plaintiff's injury and that the injury could not have occurred without negligence by the defendant. Id. at ___, 609 S.E.2d at 252 (emphasis added)(quoting Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362 (2000)). A res ipsa loquitur claim requires that the average juror be able "'to infer negligence from the mere occurrence of the accident itself'" based on the juror's common knowledge or experience. Diehl, 140 N.C. App. at 378, 536 S.E.2d at 362 (quoting 57B Am. Jur. 2d Negligence § 1826 (1989) (footnotes omitted)).
    Our Court has determined that res ipsa loquitur should be applied "somewhat restrictive[ly]" in medical malpractice cases, since "'the average juror [is] unfit to determine whether [a] plaintiff's injury would rarely occur in the absence of negligence[.]'" Howie, ___ N.C. App. at ___, 609 S.E.2d at 251 (quoting Schaffner v. Cumberland County Hosp. System, 77 N.C. App. 689, 692, 336 S.E.2d 116, 118 (1985)). The Court has recognized that the average juror cannot make such an assessment because "(1) most medical treatment involves inherent risks despite adherence to the appropriate standard of care and (2) [because of] 'the scientific and technical nature of medical treatment[.]'" Id. at ___, 609 S.E.2d at 251 (alteration in original) (quoting Schaffner, 77 N.C. App. at 692, 336 S.E.2d at 118).
    In the case before us, plaintiff relies on res ipsa loquitur to support her claim that the perforation of her esophagus was the result of defendant's negligent act. However, the average juror would not, based on that juror's common knowledge or experience, be able to infer whether the perforation of plaintiff's esophagus was the result of a negligent act. Expert testimony would be necessaryfor the average juror to determine whether negligence occurred. The trial court did not err in dismissing plaintiff's complaint for failure to state a claim on the theory of res ipsa loquitur.
B.

    Plaintiff also argues that the trial court erred in dismissing her complaint because it stated a claim under traditional negligence theories. Plaintiff argues that the complaint is sufficient to state a claim for negligence, both for her claim that defendant negligently perforated her esophagus, and that defendant negligently administered a Gentamicin overdose.
    The North Carolina General Assembly has provided specific language addressing the prerequisites for alleging a medical malpractice claim in N.C. Gen. Stat. § 1A-1, Rule 9(j). Allen v. Carolina Permanente Medical Group, P.A., 139 N.C. App. 342, 345, 533 S.E.2d 812, 813-14 (2000). Rule 9(j) states:
        Any complaint alleging medical malpractice by a health care provider as defined in G.S. 90-21.11 in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:

            (1)    The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness 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;
            (2)    The pleading specifically asserts that the medical care has been reviewed by a person that the complainant will seek to have qualified as an expertwitness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or

            (3)    The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.
N.C.G.S. § 1A-1, Rule 9(j).    
    North Carolina Rule of Evidence 702 provides in part that:
(b)    In a medical malpractice action . . . a person shall not give expert testimony on the appropriate standard of health care . . . unless the person is a licensed health care provider in this State or another state and meets the following criteria:

(1)    If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:

        a.    Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or

        b.    Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.

N.C. Gen. Stat. § 8C-1, Rule 702(b)(1).    In Allen, our Court held that a general surgeon could not serve as an expert witness in a claim against a family practitioner. Allen, 139 N.C. App. at 350-51, 533 S.E.2d at 817. In agreeing with the trial court in Allen that the plaintiff could not have reasonably believed that her proffered expert would qualify as an expert witness under Rule 702, our Court stated "'the trial court was required to dismiss' [the] plaintiff's cause of action." Id. at 351, 533 S.E.2d at 817 (quoting Keith v. Northern Hosp. Dist. of Surry County, 129 N.C. App. 402, 405, 499 S.E.2d 200, 202 (1998)).
    Plaintiff argues that her expert witness, a hospital pharmaceutical expert, satisfied the dictates of N.C. Gen. Stat. § 1A-1, Rule 9 and N.C. Gen. Stat. § 8C-1, Rule 702. Plaintiff's pleading stated that her claim "ha[d] been reviewed by hospital pharmaceutical experts." However, defendant was a gastroenterologist, not a pharmacist. As noted above, a medical malpractice claim "shall be dismissed" unless it specifically meets the statutory requirements. By failing to have her claim reviewed by a gastroenterologist, plaintiff has failed to state a claim upon which relief may be granted. Therefore the order to dismiss plaintiff's complaint against defendant is affirmed.
    Affirmed.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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