NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
JOAN B. MOORE,
No. 03 CvS 4181
GASTON MEMORIAL HOSPITAL,
WILLIAM S. WATKINS, M.D.,
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.
Joan B. Moore (plaintiff) appeals from the trial court's order
dismissing her complaint against William S. Watkins, M.D.
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.
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,
, 163 N.C. App. 504, 507, 593 S.E.2d 808, 810, disc. review
, 358 N.C. 739, 603 S.E.2d 126 (2004) (quoting Veazey v. City
, 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.
, 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.
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).
Plaintiff alleges in her complaint that, under the doctrine of
res ipsa loquitur
, defendant was negligent
perforated plaintiff's esophagus. Res ipsa loquitur
"'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
, 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
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.'"
, ___ N.C. App. at ___, 609 S.E.2d at 251 (quoting Bowlin
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
, 140 N.C. App. at 378, 536 S.E.2d at 362
(quoting 57B Am. Jur. 2d Negligence
§ 1826 (1989) (footnotes
Our Court has determined that res ipsa loquitur
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
, ___ 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
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
___, 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
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
(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
(1) If the party against whom or on
whose behalf the testimony is
offered is a specialist, the expert
a. Specialize in the
same specialty as
the party against
whom or on whose
behalf the testimony
is offered; or
b. Specialize in a
within its specialty
the performance of
the procedure that
is the subject of
the complaint and
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
, 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
. 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.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***