Appeal by plaintiff from order entered on 7 February 2000 by
Judge James D. Llewellyn in Lenoir County Superior Court. Heard in
the Court of Appeals 15 March 2001.
Faison & Gillespie, by O. William Faison and John W. Jensen,
for plaintiff-appellant.
Harris, Shields, Creech and Ward, P.A., by Robert S. Shields,
Jr., for defendant-appellees.
MARTIN, Judge.
This action arises out of medical treatment provided by Drs.
Wayne Jarman, Robert Bynum and John Berry to John Waters
[hereinafter “decedent”] at Lenoir Memorial Hospital [hereinafter
“defendant hospital”] from 8 June 1997 through 20 June 1997.
Decedent was transferred to Pitt County Memorial Hospital on 20
June and died on 6 August 1997. The complaint alleges negligence
on the part of the three physicians for failing to diagnose
appendicitis and asserts claims against Kinston Surgical Associates
and Eastern Nephrology Associates, PLLC, under the theory of
respondeat superior. The complaint also asserts claims against
defendant hospital under the theories of respondeat superior and
corporate negligence. The corporate negligence claims allege thatdefendant 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.
As required by G.S. § 1A-1, Rule 9(j), the complaint certified
that “[t]he medical care in this action was reviewed by persons
reasonably expected to qualify as expert witnesses pursuant to Rule
702 of the North Carolina Rules of Evidence” and that those persons
“are willing to testify that the medical care did not comply with
the applicable standard of care.” The complaint then stated:
This pleading, however, also alleges
facts establishing breaches of common law
duties for which certification of compliance
with Rule 9(j) is not required. In
particular, the claims against the Hospital --
which do not allege “medical malpractice by a
health care provider. . .in failing to comply
with the applicable standard of care,” but
rather, allege respondeat superior and common
law corporate negligence -- fall outside the
requirements of Rule 9(j) of the North
Carolina Rules of Civil Procedure and, as
such, compliance with Rule 9(j) with respect
to these claims is not required.
In its answer, defendant sought dismissal because plaintiff
failed to comply with Rule 9(j) as to its claims of corporate
negligence. The trial court allowed the motion and dismissed the
corporate negligence claim against defendant hospital. The trial
court certified its order as a final judgment pursuant to G.S. §
1A-1, Rule 54(b). Plaintiff appeals.
__________________________
The sole issue before this Court is whether Rule 9(j)
certification is required when a plaintiff alleges corporate
negligence claims against a hospital. G.S. § 1A-1, 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:
(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.
N.C. Gen. Stat. § 1A-1, Rule 9(j) (2000). Rule 9(j) was enacted in
1995, “in part, to protect defendants from having to defend
frivolous medical malpractice actions by ensuring that before a
complaint for medical malpractice is filed, a competent medical
professional has reviewed the conduct of the defendants and
concluded that the conduct did not meet the applicable standard of
care.”
Webb v. Nash Hospitals, Inc., 133 N.C. App. 636, 639-40,
516 S.E.2d 191, 194,
disc. review denied, 351 N.C. 122, 541 S.E.2d
471 (1999).
The applicable standard of care in medical malpractice actions
is governed by G.S. § 90-21.12, which was enacted in 1975 and
provides:
In any action for damages for personal
injury or death arising out of the furnishing
or the failure to furnish professional
services in the performance of medical, dental
or other health care, the defendant shall notbe liable for the payment of damages unless
the trier of the facts is satisfied by the
greater weight of the evidence that the care
of such health care provider was not in
accordance with the standards of practice
among members of the same health care
profession with similar training and
experience situated in the same or similar
communities . . . .
Establishing the standard of care owed by a health care provider in
a medical malpractice action generally requires “highly specialized
knowledge” not within the common knowledge of a layperson.
Mazza
v. Huffaker, 61 N.C. App. 170, 175, 300 S.E.2d 833, 837,
disc.
review denied, 309 N.C. 192, 305 S.E.2d 734 (1983). Therefore,
expert testimony is often required in medical malpractice actions.
Id. Thus, resolution of this case depends upon whether corporate
negligence claims asserted against a hospital constitute medical
malpractice actions. If the claims are medical malpractice
actions, Rule 9(j) requires certification of expert review in the
pleading.
Our statute governing actions for medical malpractice defines
“medical malpractice action” 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 otherhealth care by a health care provider.
N.C. Gen. Stat. § 90-21.11 (1999). Pursuant to this section, a
hospital constitutes a “health care provider.”
Id.
We have previously established that some negligence claims
asserted against a health care provider do not fit within the
statutory definition of medical malpractice. In
Lewis v. Setty,
130 N.C. App. 606, 503 S.E.2d 673 (1998), the plaintiff alleged
that the physician was negligent in failing to lower the
examination table prior to transferring the plaintiff to his
wheelchair. The action was dismissed by the trial court for
failure to comply with Rule 9(j).
Id. at 607, 503 S.E.2d at 673.
On appeal, we held that compliance with Rule 9(j) was not required
because the cause of action did not arise out of the “furnishing of
professional services” and therefore did not fit the definition of
a medical malpractice action.
Id. at 608, 503 S.E.2d at 674.
See
also Taylor v. Vencor, 136 N.C. App. 528, 525 S.E.2d 201,
disc.
review denied, 351 N.C. 646, 543 S.E.2d 884 (2000) (holding the
claim was not a medical malpractice action where the plaintiff sued
a nursing home for failure to adequately supervise her elderly
mother while she smoked cigarettes).
It is undisputed that the claims asserted in this action
involve the furnishing of professional services; however, the
pertinent question here appears to be whether the claims arose “
in
the performance of medical, dental, or other health care by a
health care provider.” N.C. Gen. Stat. § 90-21.11 (emphasis
added). A review of the case law involving corporate negligenceclaims asserted against a hospital reveals that there are
fundamentally two kinds of claims: (1) those relating to
negligence in clinical care provided by the hospital directly to
the patient, and (2) those relating to negligence in the
administration or management of the hospital. The case law has
treated the two types of claims differently.
Our courts have applied the medical malpractice statutory
standard of care and required expert testimony where the corporate
negligence claims arose out of clinical care provided by the
hospital to the patient. In
Clark v. Perry, 114 N.C. App. 297, 442
S.E.2d 57 (1994), the plaintiff sued a hospital for failing to
obtain informed consent prior to performing a blood transfusion.
The court noted that expert testimony is required to establish the
standard of care regarding failure to obtain informed consent, and
held that plaintiff failed to make out a
prima facie case because
no evidence was produced about the standard of care utilized by
health care facilities in similar communities when obtaining a
patient's informed consent to a blood transfusion.
Id. at 316, 442
S.E.2d at 67-68. In
Tripp v. Pate, 49 N.C. App. 329, 271 S.E.2d
407 (1980), the plaintiff alleged the hospital was negligent in
failing to promptly report test results to her physician. This
Court upheld a directed verdict in favor of defendant hospital,
holding that the plaintiff failed to offer some evidence that the
care of the defendant hospital was not in accordance with the
standards of practice among other hospitals in the same or similar
communities regarding the time necessary to report test results.
Id. at 333, 271 S.E.2d at 409-410. Finally, in
Paris v. Kreitz, 75
N.C. App. 365, 331 S.E.2d 234,
disc. review denied, 315 N.C. 185,
337 S.E.2d 858 (1985), the plaintiffs sued the hospital for
negligence because the emergency room doctor failed to see the
patient despite requests from the patient's daughter. This Court
held “[t]here is no evidence of a standard by which the Hospital's
handling of the case could be judged by a jury.”
Id. at 386, 331
S.E.2d at 248.
However, where the corporate negligence claims allege
negligence on the part of the hospital for administrative or
management deficiencies, the courts have instead applied the
reasonably prudent person standard of care. In
Blanton v. Moses H.
Cone Hosp., Inc., 319 N.C. 372, 354 S.E.2d 455 (1987), the
plaintiff sued the hospital seeking damages for injuries sustained
in a series of operations performed on its premises. The
allegations against the hospital included that the hospital was
negligent in granting privileges to plaintiff's physician to
perform an operation for which he was not qualified and in failing
to adequately monitor and oversee the physician.
Id. at 373, 354
S.E.2d at 456. The Court stated that corporate negligence is
merely the application of common law principles of negligence, and
applied the reasonably prudent person standard to the plaintiff's
claims.
Id. at 375, 354 S.E.2d 457. Similarly, this Court applied
the reasonably prudent person standard of care to a corporate
negligence claim in
Bost v. Riley, 44 N.C. App. 638, 262 S.E.2d
391,
disc. review denied, 300 N.C. 194, 269 S.E.2d 621 (1980),where the plaintiff alleged that the hospital was negligent in its
selection and supervision of the physicians who performed the
surgery.
See also Muse v. Charter Hospital, 117 N.C. App. 468, 452
S.E.2d 589,
affirmed, 342 N.C. 403, 464 S.E.2d 44
(1995) (applying
the reasonably prudent person standard where the plaintiff alleged
the hospital was negligent in its practice of discharging patients
when their insurance expired).
Collectively, we believe these cases stand for the proposition
that corporate negligence actions brought against a hospital which
pertain to clinical patient care constitute medical malpractice
actions; however, where the corporate negligence claim arises out
of policy, management or administrative decisions, such as granting
or continuing hospital privileges, failing to monitor or oversee
performance of the physicians, credentialing, and failing to follow
hospital policies, the claim is instead derived from ordinary
negligence principles. This distinction is consistent with the
statutory definition of medical malpractice actions, which requires
that the claim arise of out services “in the performance of
medical, dental or other health care.” Accordingly, 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.
Finally, we address defendant's argument that the language of
Rule 702(h) of the North Carolina Rules of Evidence demonstrates
that claims against hospitals pertaining to administrative or
nonclinical issues constitute medical malpractice actions. Thissection provides:
Notwithstanding subsection (b) of this
section, in a medical malpractice action
against a hospital or other health care or
medical facility, a person may give expert
testimony on the appropriate standard of care
as to administrative or other nonclinical
issues if the person has substantial
knowledge, by virtue of his or her training
and experience, about the standard of care
among hospitals, or health care or medical
facilities, of the same type as the hospital,
or health care or medical facility, whose
actions or inactions are the subject of the
testimony situated in the same or similar
communities at the time of the alleged act
giving rise to the cause of action.
N.C. Gen. Stat. § 8C-1, Rule 702(h). However, Rule 702(h) is a
rule of evidence, not one of substantive law. While we recognize
that the language of this evidentiary rule may appear inconsistent
with our holding in this case, we believe the substantive law is
clear that the reasonably prudent person standard, and not the
medical malpractice statutory standard of care, applies to
corporate negligence actions involving claims related to
administrative or nonclinical issues. Because principles of
ordinary negligence have been applied to these types of claims even
after the enactment of the statutory standard of care in G.S. § 90-
21.12, and because the legislature has not since articulated a
change in the standard of care, we do not believe the language of
Rule 702(h) applies to require Rule 9(j) certification. While we
recognize the danger of artful pleading in these cases and the
potential for erosion of the policy behind the enactment of Rule
9(j), this argument is for the legislature. In the case before us, the claims against defendant hospital
assert negligence in the continuation of hospital privileges,
failure to follow hospital policies, failure to monitor and oversee
the performance of the physicians, and failure to adequately assess
the credentials of the physicians prior to granting privileges.
Because these claims assert administrative and management
deficiencies and do not arise out of the furnishing of professional
services in the performance of medical, dental or other health
care, they are not claims for medical malpractice. Accordingly,
Rule 9(j) certification is not required and the court erred in
dismissing these claims.
Reversed.
Judges TIMMONS-GOODSON and TYSON concur.
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