Appeal by plaintiff from an order entered 13 September 2005 by
Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in
the Court of Appeals 11 October 2006.
Mills & Economos, L.L.P., by Larry C. Economos, for plaintiff-
Hornthal Riley Ellis & Maland, LLP, by John D. Leidy, for
defendant-appellee Robin Byrum.
Battle Winslow Scott & Wiley, P.A., by Marshall A. Gallop,
Jr., for defendant-appellee Shirley Smith.
Roswald B. Daly, Jr. and Baker Jones for defendant-appellee
Beverly Edwards, M.D.
Poyner & Spruill, LLP, by J. Nicholas Ellis and Jenny L.
Matthews, for defendant-appellee David R. Faber, II, M.D.
Heather D. Acosta (plaintiff) appeals from an order
dismissing her complaint against David R. Faber, II, M.D. (Dr.
Faber) with prejudice. For the reasons stated herein, we reverse.
The issue in this case is whether the trial court properly
dismissed plaintiff's complaint as to Dr. Faber. Plaintiff argues
that the complaint stated a valid claim against Dr. Faber for
negligent infliction of emotional distress. On 12 May 2005, plaintiff filed an action alleging invasion of
privacy and intentional infliction of emotional distress against
Robin Byrum (Byrum) and negligent infliction of emotional
distress against Dr. Faber. Similar additional claims were made
against two other defendants not associated with Psychiatric
Associates of Eastern Carolina (Psychiatric Associates).
Plaintiff was a patient of Psychiatric Associates, which is
located in Ahoskie, North Carolina. She was also employed by
Psychiatric Associates from September 2003 until early spring of
2004. Psychiatric Associates is owned by Dr. Faber, a citizen and
resident of Alabama. Byrum was the office manager at Psychiatric
Associates during the time period at issue. Plaintiff alleged that
Byrum had severe personal animus towards plaintiff.
Plaintiff alleged that Dr. Faber improperly allowed Byrum to
use his medical record access number. Numerous times between 31
December 2003 and 3 September 2004, Byrum used Dr. Faber's access
code to retrieve plaintiff's confidential psychiatric and other
medical and healthcare records. Byrum then provided information
contained in those records to third parties without plaintiff's
authorization or consent.
Plaintiff alleged in her complaint that by providing Byrum
with his access code, Dr. Faber violated the rules and regulations
established by University Health Systems, Roanoke Chowan Hospital,
and the Health Insurance Portability and Accountability Act of 1996
(HIPAA). Plaintiff alleged that she experienced severe emotional
distress, humiliation, and anguish from the exposure of her medicalrecords to third parties. Plaintiff alleged that Dr. Faber knew or
should have known that his negligence would cause severe emotional
Responding to these claims, Dr. Faber filed a motion to
dismiss pursuant to Rules 12(b)(2) and (6). After a hearing, the
trial court granted Dr. Faber's motion to dismiss. Plaintiff
appeals from that order.
I. Interlocutory Appeal
 We must first decide whether this appeal is properly
before the Court. When multiple parties are involved in a lawsuit,
the trial court may make a final judgment as to one or more but
fewer than all of the claims or parties[.] N.C. Gen. Stat. §
1A-1, Rule 54(b) (2005). Appeal of an order dismissing one of the
parties to a suit is interlocutory. Hoots v. Pryor
, 106 N.C. App.
397, 400, 417 S.E.2d 269, 272 (1992) ([i]nterlocutory orders are
those made during the pendency of an action which do not dispose of
the case but leave it for further action by the trial court in
order to settle and determine the entire controversy).
Interlocutory appeals are heard only in two circumstances: (1)
when a judge certifies that there is no reason to delay the appeal;
or (2) a substantial right of the appellant is affected. Davis v.
, 360 N.C. 518, 524-25, 631 S.E.2d 114, 119 (2006).
Here, plaintiff's appeal is interlocutory as only the
complaint against Dr. Faber was dismissed and claims remain against
the other three defendants. Since the trial court made no
certification, the dismissal must affect a substantial right ofplaintiff in order for this appeal to be heard. Avoiding two
trials on the same factual issues affects a substantial right
because separate trials might render inconsistent verdicts on the
same factual issue. Green v. Duke Power Co
., 305 N.C. 603, 608,
290 S.E.2d 593, 596 (1982). The claim against Dr. Faber is
factually similar to the claims against the other three defendants.
Thus, a dismissal of the claim against Dr. Faber raises the
possibility of inconsistent verdicts in later proceedings. See
Clontz v. St. Mark's Evangelical Lutheran Church
, 157 N.C. App.
325, 327-28, 578 S.E.2d 654, 657 (2003) (motion to dismiss two of
the defendants subject to review because of the right to try the
issues of liability as to all parties before the same jury as well
as the right to avoid inconsistent verdicts in separate trials are
implicated). Dr. Faber does not dispute that this matter affects
a substantial right of the plaintiff. Accordingly, we review
plaintiff's appeal under the substantial right exception to the
general rule prohibiting interlocutory appeals.
II. Sufficiency of the Complaint
 Plaintiff argues that the complaint should not have been
dismissed because it sufficiently stated a claim for negligent
infliction of emotional distress against Dr. Faber. We agree.
The appropriate standard of review for a motion to dismiss is
'whether, as a matter of law, the allegations of the complaint
. . . are sufficient to state a claim upon which relief may be
granted[.]' Hunter v. Guardian Life Ins. Co. of Am.
, 162 N.C.
App. 477, 480, 593 S.E.2d 595, 598 (2004) (citations omitted). Thereview is de novo
. Leary v. N.C. Forest Prods., Inc
., 157 N.C.
App. 396, 400, 580 S.E.2d 1, 4 (2003). For purposes of a 12(b)
motion, allegations of fact from the complaint are taken as true.
Cage v. Colonial Building Co
., 337 N.C. 682, 683, 448 S.E.2d 115,
116 (1994). The complaint must be liberally construed, and the
court should not dismiss the complaint unless it appears beyond a
doubt that the plaintiff could not prove any set of facts to
support his claim which would entitle him to relief. Block v.
County of Person
, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419
(2000). The plaintiff must allege the substantive elements of a
valid claim. Hewes v. Johnston
, 61 N.C. App. 603, 604, 301 S.E.2d
120, 121 (1983).
Rule 8 of the North Carolina Rules of Civil Procedure governs
complaints. A complaint must contain [a] short and plain
statement of the claim sufficiently particular to give the court
and the parties notice of the transactions, occurrences, or series
of transactions or occurrences, intended to be proved showing that
the pleader is entitled to relief[.] N.C. Gen. Stat. § 1A-1, Rule
8(a)(1) (2005). The rule further states: Each averment of a
pleading shall be simple, concise, and direct. N.C. Gen. Stat. §
1A-1, Rule 8(e)(1). Moreover, notice pleadings need not contain
detailed factual allegations to raise issues. Southern of Rocky
Mount v. Woodward Specialty Sales
, 52 N.C. App. 549, 553, 279
S.E.2d 32, 34 (1981).
Plaintiff claims that Dr. Faber caused severe emotional
distress to plaintiff when he negligently provided his medicalaccess code to Byrum. The substantive elements of negligent
infliction of emotional distress are: (1) the defendant
negligently engaged in conduct, (2) it was reasonably foreseeable
that such conduct would cause the plaintiff severe emotional
distress . . . , and (3) the conduct did in fact cause the
plaintiff severe emotional distress. Johnson v. Ruark Obstetrics
327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990). Therefore, in
analyzing the sufficiency of the complaint, the dispositive
question becomes whether plaintiff sufficiently stated a claim for
negligent infliction of emotional distress for which relief can be
When analyzing a 12(b)(6) motion, the court is to take all
factual allegations as true, but should not presume legal
conclusions to be true. Miller v. Rose
, 138 N.C. App. 582, 592,
532 S.E.2d 228, 235 (2000). The court, however, is concerned with
the law of the claim, not the accuracy of the facts that support a
12(b)(6) motion. Snyder v. Freeman
, 300 N.C. 204, 209, 266 S.E.2d
593, 597 (1980) (citation omitted) ('[t]he function of a motion to
dismiss is to test the law of a claim, not the facts which support
it'). Furthermore, 'a complaint should not be dismissed for
insufficiency unless it appears to a certainty that plaintiff is
entitled to no relief under any state of facts which could be
proved in support of the claim.' Sutton v. Duke
, 277 N.C. 94,
103, 176 S.E.2d 161, 166 (1970) (emphasis omitted) (citation
omitted). In the instant case, plaintiff alleges all the
substantive elements of negligent infliction of emotional distress. Moreover, plaintiff alleges sufficient facts to support these
Plaintiff first contends she sufficiently alleged defendant's
negligence. Plaintiff alleged that defendant negligently engaged
in conduct by permitting Byrum to use his access code in violation
of the rules and regulations of the University Health Systems,
Roanoke Chowan Hospital, and HIPAA.
Plaintiff does not cite the exact rule or regulation of the
University Health Systems, Roanoke Chowan Hospital, or HIPAA which
allegedly establish Dr. Faber's duty to maintain privacy in her
confidential medical records. She merely alleges that these rules
provide the standard of care. Plaintiff, however, is not required
in her complaint to cite the exact rule or regulation. See
Gen. Stat. § 1A-1, Rule 8. She only must provide Dr. Faber notice
of how she plans to establish the duty that was negligently
breached. To require plaintiff to describe particular provisions
of the rules and regulations would defeat the purpose of simple
notice pleadings, i.e., to place the opposing party on notice of
all claims and defenses. Further specificity is reserved for the
discovery process. See Sutton
, 277 N.C. at 102, 176 S.E.2d at 165
(citation omitted) (the complaint deemed sufficient since it put
plaintiff on notice of the nature and basis of the negligence
claim; 'notice pleading is made possible by the liberal
opportunity for discovery . . . to disclose more precisely the
basis of both claim and defense and to define more narrowly the
disputed facts and issues'). Here, defendant has been placed onnotice that plaintiff will use the rules and regulations of the
University Health Systems, Roanoke Chowan Hospital, and HIPAA to
establish the standard of care. Therefore, plaintiff has
sufficiently pled the standard of care in her complaint.
Plaintiff next contends she sufficiently alleged facts to
state a claim that Dr. Faber's breach proximately caused severe
emotional distress. Plaintiff's complaint alleges that Dr. Faber
knew or should have known that providing the medical access code to
Byrum would cause plaintiff's severe emotional distress. Plaintiff
also states that Dr. Faber proximately caused plaintiff to suffer
severe emotional distress.
'[T]he test of proximate cause is whether the risk of injury,
not necessarily in the precise form in which it actually occurs, is
within the reasonable foresight of the defendant.' Martishius v.
Carolco Studios, Inc
., 355 N.C. 465, 479, 562 S.E.2d 887, 896
(2002) (quoting Williams v. Carolina Power & Light Co
., 296 N.C.
400, 403, 250 S.E.2d 255, 258 (1979)). Questions of proximate
cause and foreseeability are questions of fact to be decided by the
jury. Rouse v. Jones
, 254 N.C. 575, 580, 119 S.E.2d 628, 632
(1961); see also McIntyre v. Elevator Co
., 230 N.C. 539, 545, 54
S.E.2d 45, 49 (1949) ([r]arely is the court justified in deciding
[proximate cause] as a matter of law). Thus, since proximate
cause is a factual question, not a legal one, it is typically not
appropriate to discuss in a motion to dismiss.
Driver v. Burlington Aviation, Inc
., 110 N.C. App. 519, 430
S.E.2d 476 (1993), addressed an allegation of proximate cause in aclaim for negligent infliction of emotional distress. There, a
husband and wife were severely injured when the plane they rented
. at 521, 430 S.E.2d at 479. They sued the plane
manufacturer and the owner of the plane, asserting seven claims for
relief, including negligent infliction of emotional distress. Id
at 521-23, 430 S.E.2d at 479. In their complaint, the plaintiffs
sought to establish proximate cause by alleging that '[t]he
negligence of Cessna Aircraft and Burlington Aviation as alleged
herein actually and proximately caused the damages to the
. at 523, 430 S.E.2d at 479. Despite this
pleading, the trial court dismissed all the claims pursuant to a
12(b)(6) motion. Id
The Court of Appeals reversed the dismissal of the negligence
and negligent infliction of emotional distress claims. Id
. at 531,
430 S.E.2d at 484. Because the plaintiffs alleged that the
defendants' negligence actually and proximately caused . . .
severe emotional distress[,] the Court held that the motion to
dismiss the negligence and negligent infliction of emotional
distress claims should not have been granted. Id
Plaintiff in this case pled the following two paragraphs in
her complaint: 59. Dr. Faber knew or should have known that his
negligence, as described above, was likely to cause Plaintiff
severe emotional distress. 60. Dr. Faber's negligence, as
described above, proximately caused Plaintiff to suffer severe
emotional distress, humiliation and mental anguish. Theseallegations of foreseeability and proximate cause are strikingly
similar to those made in Driver
Additionally, plaintiff alleged the following relevant facts
to support that allegation: Dr. Faber knew of the severe personal
animus Byrum had for plaintiff, Dr. Faber allowed Byrum to use his
medical access code, Byrum used that code to access and obtain
plaintiff's confidential medical records, and consequently,
plaintiff suffered severe emotional distress, humiliation, and
mental anguish. These facts are sufficient to support plaintiff's
claim of negligent infliction of emotional distress. See also
Zenobile v. McKecuen
, 144 N.C. App. 104, 110-11, 548 S.E.2d 756,
760-61 (2001) (sufficient facts alleged to support a claim of
negligent infliction of emotional distress).
Plaintiff next contends she alleged sufficient facts to
support a claim of severe emotional distress. Our Supreme Court
discussed what is required of a complaint to establish the element
of severe emotional distress in McAllister v. Ha
, 347 N.C. 638, 496
S.E.2d 577 (1998). In McAllister
, the Court considered a motion to
dismiss a negligent infliction of emotional distress claim against
a doctor. Id
. at 645-46, 496 S.E.2d at 582-83. The doctor tested
the plaintiffs for sickle-cell disease so the plaintiffs could
decide whether to have another child. Id
. at 640, 496 S.E.2d at
580. The doctor was to call with the results only if there was
anything to be concerned about, but he failed to do this when the
results indicated a heightened risk of sickle-cell disease for any
child born. Id
. The child was born with a sickle-cell disease,and the parents sued the doctor claiming
negligent infliction of
emotional distress. Id
. at 640-41, 496 S.E.2d at 580.
In the complaint, the [p]laintiffs alleged that defendant's
negligence caused them 'extreme mental and emotional distress,'
specifically referring to plaintiff-wife's fears regarding her
son's health and her resultant sleeplessness. Id
. at 646, 496
S.E.2d at 583. The Court acknowledged the sparseness of this
allegation of extreme emotional distress, but nevertheless held it
sufficient to state a claim for negligent infliction of emotional
. The allegation was sufficient so long as it
provided the 'defendant notice of the nature and basis of
plaintiffs' claim so as to enable him to answer and prepare for
. (citation omitted).
Similar to McAllister
, plaintiff here claimed that defendant's
negligence caused severe emotional distress, humiliation, and
mental anguish. This allegation alone, when combined with her
other factual claims, placed defendant on 'notice of the nature
and basis of plaintiff's claim[.]' Id
. (citation omitted).
Therefore, plaintiff's factual and legal allegations are sufficient
to state a claim for negligent infliction of emotional distress.
Since all the elements of negligent infliction of emotional
distress were alleged and plaintiff stated relevant facts to
support those elements, the complaint sufficiently stated a claim
for negligent infliction of emotional distress, and the trial court
erred in dismissing plaintiff's complaint for failure to state a
III. Personal Jurisdiction
 Plaintiff argues that Dr. Faber was subject to the
personal jurisdiction of North Carolina. Since personal
jurisdiction was proper, plaintiff contends, the complaint should
not have been dismissed for lack of personal jurisdiction. We
Dr. Faber's motion to dismiss also alleged that defendant was
not subject to personal jurisdiction in North Carolina. Dr. Faber
is a citizen and resident of Alabama. He, however, is the owner of
Psychiatric Associates, a company doing business in North Carolina.
For jurisdiction to be proper, North Carolina's long arm
statute must authorize jurisdiction and the defendant must be
afforded his constitutional right to due process. Better Business
Forms, Inc. v. Davis
, 120 N.C. App. 498, 500, 462 S.E.2d 832, 833
(1995). North Carolina's long-arm statute reaches defendants whose
[s]olicitation or services activities were carried on within this
State by or on behalf of the defendant[.] N.C. Gen. Stat. § 1-
75.4(4)(a) (2005). Dr. Faber was the owner of a medical practice
whose activities were carried on within North Carolina. Thus,
North Carolina's long arm statute applies to Dr. Faber.
North Carolina cannot assert personal jurisdiction over Dr.
Faber unless he is afforded his due process rights. That is, Dr.
Faber must have minimum contacts with North Carolina.
International Shoe Co. v. Washington
, 326 U.S. 310, 316, 90 L. Ed.
95, 102 (1945). He also must purposefully avail himself of the
privilege of conducting activities within North Carolina and haveinvoked the benefits and protection of the laws of North Carolina.
. at 319, 90 L. Ed. at 103-04. As owner of a business in North
Carolina, Dr. Faber purposefully availed himself within the state
and invoked the protection of the laws. Thus, Dr. Faber had
minimal contacts with the state. Accordingly, since the long arm
statute reaches Dr. Faber and he had minimum contacts with the
state, jurisdiction over Dr. Faber is proper in this matter.
IV. HIPAA violation
 Plaintiff contends that no claim for an alleged HIPAA
violation was made and therefore dismissal on the grounds that
HIPAA does not grant an individual a private cause of action was
improper. We agree.
In her complaint, plaintiff states that when Dr. Faber
provided his medical access code to Byrum, Dr. Faber violated the
rules and regulations established by HIPAA. This allegation does
not state a cause of action under HIPAA. Rather, plaintiff cites
to HIPAA as evidence of the appropriate standard of care, a
necessary element of negligence. Since plaintiff made no HIPAA
claim, HIPAA is inapplicable beyond providing evidence of the duty
of care owed by Dr. Faber with regards to the privacy of
plaintiff's medical records.
V. Rule 9(j)
 Plaintiff also contends that as the complaint does not
allege medical malpractice, plaintiff was not required to comply
with Rule 9(j) of the North Carolina Rules of Civil Procedure. We
agree. Rule 9(j) requires plaintiffs alleging medical malpractice to
obtain, prior to filing suit, certification from an expert willing
to testify that the doctor did not comply with the applicable
standard of care. N.C. Gen Stat. § 1A-1, Rule 9(j) (2005). A
medical malpractice action is defined as 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.
N.C. Gen Stat. § 90-21.11 (2005) (emphasis added).
Estate of Waters v. Jarman
, 144 N.C. App. 98, 547 S.E.2d 142
(2001), discusses the applicability of the in the performance of
standard. There, the plaintiff sued the hospital for the allegedly
negligent acts of three of its physicians under theories of
respondent superior and corporate negligence. Id
. at 98-99, 547
S.E.2d at 143. For the corporate negligence claim, the plaintiff
alleged that the hospital was negligent by failing to adequately
assess the physicians' credentials before granting hospital
privileges, by continuing the physicians' privileges at the
hospital, by failing to monitor and oversee the physicians'
performances, and by failing to follow its own procedures. Id
99, 547 S.E.2d at 143.
This Court placed claims against hospitals into two
categories: (1) those that directly involve the hospital's
clinical care of the patient; and (2) those relating to the
negligent management or administration of the hospital. Id
101, 547 S.E.2d at 144. Jarman
held that the former qualifies asa medical malpractice claim governed by Rule 9(j) while the latter
should proceed under ordinary negligence principles. Id
. at 103,
547 S.E.2d at 145. This Court held that only those claims which
assert negligence on the part of the hospital which arise out of
the provision of clinical patient care constitute medical
malpractice actions and require Rule 9(j) certification. Id
also Sharpe v. Worland
, 147 N.C. App. 782, 784, 557 S.E.2d 110, 112
(2001) (Rule 9(j) certification is not necessary for ordinary
negligence claims, even if defendant is a health care provider).
Therefore, plaintiff only needs to comply with the provisions of
Rule 9(j) when alleging negligence that arise[s] out of the
provision of clinical patient care. Jarman
, 144 N.C. App. at 103,
547 S.E.2d at 145.
Here, Dr. Faber's alleged negligent act was providing his
medical access code to Byrum. Providing an access code to access
certain medical files qualifies as an administrative act, not one
involving direct patient care. Therefore, Rule 9(j) is
inapplicable; plaintiff did not need certification before filing
Plaintiff's complaint should not have been dismissed because
plaintiff sufficiently stated a claim for negligent infliction of
emotional distress against Dr. Faber, personal jurisdiction over
Dr. Faber was proper, no HIPAA violation was alleged in the
complaint, and Rule 9(j) is inapplicable. Accordingly, we reversethe decision of the trial court dismissing plaintiff's complaint
against Dr. Faber.
Judges HUDSON and CALABRIA concur.
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