Appeal by plaintiff from Order entered 29 August 2006 by Judge
John O. Craig, III, in Ashe County Superior Court. Heard in the
Court of Appeals 10 May 2007.
Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S.
Johnson, for the plaintiff-appellant.
Sharpless & Stavola, P.A., by Brenda S. McClearn, for
defendant-appellee.
STROUD, Judge.
Plaintiff appeals from an order granting defendant's motion
for summary judgment because of failure to have medical care
reviewed by a certifying expert as required for a medical
malpractice action by Rule 9(j) of the North Carolina Rules of
Civil Procedure. The dispositive issue in this case is whether the
use of restraints on a patient is a medical procedure. Because we
conclude that the use of restraints in the case sub judice is a
medical procedure, we affirm.
I. Background
“A medical assessment for the use of restraints can be
delicate and complex, and as such, requires the application ofclinical judgment.” According to defendant's internal policy on
restraints, the use of restraints requires an order written by a
physician or a physician's assistant (PA). When a physician or PA
is not immediately available, defendant's policy allows a nurse to
initiate the use of restraints if “[b]ased on an appropriate
assessment of the patient.” An appropriate assessment “includes
assessing the patient's medications, orthopedic diseases,
neurological status . . . and other medical conditions.”
If a nurse initiates the use of restraints, a physician is to
be notified immediately if the nurse initiates restraints based on
a significant change in the patient's condition. Otherwise, a
physician or PA must be notified within one hour of a nurse's
initiation of restraints. If the restraints are to remain on the
patient, a physician or PA must provide a verbal or written order.
On or about 23 November 2003, Charlie L. Johnson (“decedent”),
a seventy-six year-old man, was admitted to defendant hospital. At
admission, decedent was disoriented, unable to walk, and suffering
from a decreased level of consciousness. Decedent's
cardiovascular, neurological and musculoskeletal systems were
abnormal. Nurse Violet Barker conducted a nursing assessment of
decedent upon his admission to defendant's facility and implemented
defendant hospital's fall prevention plan (FPP), putting decedent's
bedrails in the “up” position and placing restraints on decedent.
On 24 November 2003 defendant's employees removed the
restraints from decedent. At 3:15 p.m. on 25 November 2003,
defendant's employees found decedent out of bed and sitting in achair. Around 7:00 p.m. defendant's employees noted that decedent
was neurologically abnormal and suffering from confusion and
dementia, and had a low oxygen saturation level and an irregular
heartbeat. They assessed decedent as a fall risk “8” according to
defendant's FPP. Doctor Clay was notified by phone and ordered
nebulizer treatments, but no restraints were placed on decedent.
Around 10:00 p.m. defendant's employees looked in on decedent and
noted no distress. Decedent was not checked again until 11:30
p.m., when defendant's staff found decedent lying on the floor in
his room. Decedent was unresponsive and had suffered head
injuries, fractures to his right shoulder and elbow, and injury to
his right knee. Decedent was transferred from defendant's facility
to Wake Forest University Baptist Medical Center, where he remained
until his death on 12 December 2003.
On 1 December 2005, Peggy Johnson Sturgill, Administratrix of
the Estate of Charlie L. Johnson, filed a complaint against Ashe
Memorial Hospital, Inc. Defendant answered on 18 December 2005.
On 7 June 2006 defendant moved for summary judgment to dismiss the
action pursuant to Rule 9(j) and Rule 56 of the North Carolina
Rules of Civil Procedure on the grounds that plaintiff failed to
have the medical care reviewed by a person qualified under Rule 702
of the Rules of Evidence who is willing to testify that the nursing
and medical care did not comply with the applicable standard of
practice. On 2 August 2006, an amended motion for summary judgment
was filed by defendant to include supporting affidavits. On 3
August 2006, plaintiff submitted supporting affidavits. On 14August 2006, Judge John O. Craig, III, heard the motion for summary
judgment. On 29 August 2006, Judge Craig granted defendant's
motion for summary judgment pursuant to Rule 56 and Rule 9(j) of
the North Carolina Rules of Civil Procedure, dismissing the
complaint with prejudice. Plaintiff appeals.
II. Standard of Review
Summary judgment is appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c).
A trial court's grant of summary judgment receives
de novo review
on appeal, and evidence is viewed in the light most favorable to
the non-moving party.
Stafford v. County of Bladen, 163 N.C. App.
149, 151, 592 S.E.2d 711, 713,
disc. review denied and appeal
dismissed, 358 N.C. 545, 599 S.E.2d 409 (2004).
III. Legal Analysis
Plaintiff contends the trial court erred by classifying her
claim as one for medical malpractice and granting summary judgment
for defendant on that basis. Plaintiff contends that defendant's
motion for summary judgment should have been denied because the
complaint alleges that the failure to implement defendant's FPP and
failure to supervise decedent do not involve matters of specialized
science or skill, therefore constitutes only a claim for ordinary
negligence which does not require Rule 9(j) certification.
Specifically, plaintiff contends that claims against a hospital donot necessarily allege medical malpractice, citing
Duke University
v. St. Paul Fire and Marine Ins. Co., 96 N.C. App. 635, 640-41, 386
S.E.2d 762, 766,
disc. review denied, 326 N.C. 595, 393 S.E.2d 876
(1990) (“[N]egligence actions against health care providers may be
based upon breaches of the ordinary duty of reasonable care where
the alleged breach does not involve rendering or failing to render
professional services requiring special skills.”).
Plaintiff further contends that the case
sub judice is
analogous to cases in which this Court classified actions against
health care providers as claims for ordinary negligence. To
support this contention, plaintiff cites
Lewis v. Setty, 130 N.C.
App. 606, 503 S.E.2d 673 (1998) (moving a patient from an exam
table to a wheelchair did not involve specialized knowledge or
skill and as such did not constitute medical malpractice requiring
Rule 9(j) certification),
Taylor v. Vencor, Inc., 136 N.C. App.
528, 530, 525 S.E.2d 201, 203 (“observation and supervision of the
plaintiff-nursing home resident, when she smoked in the designated
smoking area, did not constitute an occupation involving
specialized knowledge or skill”),
disc. review denied, 351 N.C.
646, 543 S.E.2d 889 (2000), and
Norris v. Rowan Memorial Hospital,
Inc., 21 N.C. App. 623, 626, 205 S.E.2d 345, 348 (1974) (failing to
raise the side rails on the patient's bed in violation of hospital
rules and failing to give proper attention “did not involve the
rendering or failure to render professional nursing or medical
services requiring special skills”). Defendant responds that plaintiff's complaint only alleges
that decedent's accident occurred as a result of being
unrestrained. Defendant argues that because the use of restraints
requires an order from a physician or PA based on clinical
judgment, it is therefore a professional service, rendering
plaintiff's complaint a claim for medical malpractice, not a claim
for ordinary negligence. Accordingly, defendant contends that the
complaint was properly dismissed for failure to obtain and include
Rule 9(j) certification.
Rule 9(j) provides, in pertinent part:
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 . . . [t]he
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[.]
N.C. Gen. Stat. § 1A-1, Rule 9(j).
As used in Rule 9(j), “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.” N.C. Gen. Stat. § 90-21.11 (2005)
(emphasis added).
“Professional services” has been defined by this Court to mean
an act or service “'arising out of a vocation, calling, occupation,
or employment involving specialized knowledge, labor, or skill, andthe labor [or] skill involved is predominantly mental or
intellectual, rather than physical or manual.'”
Smith v. Keator,
21 N.C. App. 102, 105-06, 203 S.E.2d 411, 415 (quoting
Marx v.
Hartford Accident & Indem. Co., 183 Neb. 12, 14, 157 N.W.2d 870,
872 (1968)),
aff'd, 285 N.C. 530, 206 S.E.2d 203,
appeal dismissed,
419 U.S. 1043, 42 L. Ed. 2d 636 (1974).
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.”
Anderson v. Assimos, 356 N.C. 415, 417, 572
S.E.2d 101, 102 (2002);
see also Bratton v. Oliver, 141 N.C. App.
121, 125, 539 S.E.2d 40, 43 (2000) (“A party is bound by his
pleadings and, unless withdrawn, amended or otherwise altered, the
allegations contained in all pleadings ordinarily are conclusive as
against the pleader. He cannot subsequently take a position
contradictory to his pleadings.” (citation and quotation omitted)),
disc. review denied, 353 N.C. 369, 547 S.E.2d 808 (2001).
Plaintiff's brief characterizes the complaint as analogous to
Norris, contending that it is partly based on failure to implement
defendant's FPP, and also analogous to
Taylor, contending that it
is partly based on defendant's failure to supervise decedent.
However, a careful reading shows that the complaint is not based on
failure to implement defendant's FPP or on failure to supervise
decedent, but is based solely on the lack of restraints on
decedent. The complaint mentions the FPP only in passing when reciting
the factual background to the complaint: “nurse Violet Barker
implemented the Defendant facility's fall prevention plan and
placed his bedrails in the 'up' position and placed restraints on
the decedent.” No other mention of the FPP is made in plaintiff's
complaint or supporting affidavits, and the text of defendant's FPP
was only admitted into the record by defendant's affidavits.
Furthermore, the record indicates that the FPP was followed by
defendant's employees, noting that decedent's bedrails were placed
in the “up” or raised position. Plaintiff's affidavits also
confirm that the bedrails were raised, in compliance with the FPP.
In addition, the FPP did not require the staff to check on decedent
at regular timed intervals but “every time they pass his room,” and
plaintiff's complaint shows compliance with this requirement with
decedent being checked at varying intervals, as the nurses passed
his room.
Plaintiff's complaint makes only one allegation that could be
generously construed as being based on the failure of defendant to
supervise decedent.
14. At 11:30 p.m., on November 25, 2003, the
nursing staff checked Decedent for the first
time in an hour and a half. At this time,
nurse Sharon Hartzog found the Decedent lying
on the floor in his room.
Plaintiff does not allege that defendant had any duty to check on
decedent sooner than within an hour and a half, and makes no
allegation as to how failing to check on plaintiff during that hour
and a half caused plaintiff's injuries.
See City of Thomasville v.Lease-Afex, Inc., 300 N.C. 651, 656, 268 S.E.2d 190, 194 (1980)
(listing the essential elements of a negligence claim).
While we do not find any allegation in the complaint that
alleges ordinary negligence based on failure to follow the FPP, or
based on failure to supervise, plaintiff's complaint does state
that:
15. As a direct and proximate result of the
Decedent
being unrestrained, the Decedent was
able to climb out of his bed and fall.
(Emphasis added.)
From the plain meaning of this statement, plaintiff is basing
her complaint on defendant's lack of restraints on decedent as the
cause of decedent's fall and resulting injuries, not on the failure
to follow the FPP or failure to supervise. In addition,
plaintiff's complaint noted the failure of defendant to put
restraints on decedent or the lack of restraints on decedent at
least seven times. Furthermore, plaintiff's accompanying
affidavits state:
If he had been
properly restrained, my father
would not have been able to have gotten out of
bed and fallen . . . . If he had been
properly restrained, Mr. Johnson would not
have been able to have gotten out of bed and
fallen.
(Emphasis added.)
This statement further shows that the claim was based solely on the
hospital's lack of restraints on decedent.
It is undisputed in the record that the use of restraints is
a medical decision that normally “requires an order written by a
physician or physician's assistant.” It is also undisputed in therecord that “[a] medical assessment for the use of restraints can
be delicate and complex, and as such, requires the application of
clinical judgment.” Although a nurse can administer restraints on
a patient, as nurse Barker did on 23 November 2003, a physician or
PA must be notified within one hour and provide an order for the
restraint to remain. Because the decision to apply restraints is
a medical decision requiring clinical judgment and intellectual
skill, see Smith v. Keator, 21 N.C. App. at 105-06, 203 S.E.2d at
415, it is a professional service. Consequently, plaintiff's
complaint is a claim for medical malpractice, thus requiring rule
9(j) certification.
Finally, plaintiff attempted to put a catch-all negligence
allegation in her complaint:
17. At the times and places set forth above,
the Defendant, through its employees and
agents, were [sic] negligent by failing to act
reasonably and diligently with regard to the
care, safety, and well-being of the Decedent.
This statement makes reference to the “times and places set forth
above,” each of which, other than the basic factual context and
allegations regarding the state of decedent's health, refers to the
lack of restraints placed on decedent.
Although the facts in the case sub judice are somewhat similar
to the cases cited by plaintiff, she has chosen to base her
complaint on the lack of restraints on decedent. Plaintiff did not
assert a theory of ordinary negligence in her pleadings based on
the failure to implement the FPP or failure to supervise decedent.On review, plaintiff is bound by her pleadings, and may not raise
this new theory of negligence for the first time on appeal.
IV. Conclusion
Rule 9(j) provides that “[a]ny complaint alleging medical
malpractice . . . shall be dismissed” if it does not comply with
the certification mandate. N.C. Gen. Stat. § 1A-1, Rule 9(j);
Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002).
(“[M]edical malpractice complaints have a distinct requirement of
expert certification with which plaintiffs must comply. Such
complaints will receive strict consideration by the trial judge.
Failure to include the certification necessarily leads to
dismissal.”). For the reasons stated above, we hold that
plaintiff's original complaint was for medical malpractice and
required Rule 9(j) certification. Because Rule 9(j) certification
was not included in plaintiff's complaint, the trial court's entry
of summary judgment for defendant is affirmed.
Affirmed.
Judges McCULLOUGH and BRYANT concur.
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