Flythe v. Southern Health Partners, Inc. et al
ORDER granting in part and denying in part 21 Motion to Dismiss. Count 8 and that portion of Count 9 alleging medical malpractice are hereby DISMISSED. The Motion to Dismiss is DENIED as to all other Counts and claims. Signed by U.S. District Judge Terrence W. Boyle on 5/11/11. (Talbert, S.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
No. 4: 1O-CV-OO 126-BO
EDDIE DEWAYNE FLYTHE,
MARTY DAVIS, WILLIAM LIVERMAN,
ROBERT BLOW, CHESTER RIDLEY,
RICHARD TANN, and JOHN DOES 1-4,
Deputy Sheriffs of the Hertford County
Sheriffs Office, in their individual capacities;
JUAN VAUGHAN, SR., Sheriff of Hertford
County, in his official and individual capacities;
THE OHIO CASUALTY INSURANCE
COMPANY, as surety; SOUTHERN HEALTH
PARTNERS, INC.; and JANE DOES 1-5;
Before the Court is a Motion to Dismiss [DE 21] pursuant to Federal Rule of Civil Procedure
12(b)(6), filed by Defendants Marty Davis, William Liverman, Robert Blow, Chester Ridley,
Richard Tann, Juan Vaughan Sr., and Ohio Casualty Insurance Company. As set forth below, the
Motion is GRANTED IN PART and DENIED IN PART.
Plaintiff filed his Complaint on September 15, 2010, and, before the Defendants answered,
filed an Amended Complaint on November 18, 2010. Plaintiff alleges violations of his rights
stemming from his arrest by Hertford County Sheriffs deputies in September, 2007 and during his
subsequent incarceration in the Hertford County Jail. Plaintiff asserts claims under state law, Am.
Compl. ,-r,-r 92-176, and under federal law by way of 42 U.S.C. § 1983, Am. Compl. ,-r,-r 177-237.
The moving Defendants have filed an Answer and a Motion to Dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), to which the Plaintiffhas responded in opposition. In this posture,
the Motion is ripe for adjudication.
The Legal Standards
A Rule 12(b)(6) motion to dismiss for failure to state a claim for which relief can be
granted challenges the legal sufficiency of a plaintiffs complaint. Francis v. Giacomelli, 588
FJd 186, 192 (4th Cir. 2009). When ruling on the motion, the court "must accept as true all of
the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89,93-94
(2007) (citing Bell At!. Corp. v. Twombly, 550 U.S. 544,555-56 (2007)). Although complete and
detailed factual allegations are not required, "a plaintiffs obligation to provide the 'grounds' of
his 'entitle[ment] to relief requires more than labels and conclusions." Twombly, 550 U.S. at 555
(citations omitted). "Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice." Ashcroft v. Iqbal, _
U.S. _ , _ , 129 S.Ct. 1937,
1949 (2009) (citing Twombly, 550 U.S. at 555).
Defendants' Motion To Dismiss
The Plaintiff was arrested on September 15, 2007 by Hertford County Sheriffs deputies
and taken to the Hertford County Jail. Am. Compl.
24-44. Plaintiff alleges, inter alia, that while
at the jail, the Defendants failed to provide him with medical care. Am. Compl. ~~ 54-80. In moving
to dismiss the Plaintiff s state law claims, Defendants contend that Counts Eight and Nine, alleging
negligence and gross negligence, are in fact medical malpractice claims that require a special pre
filing certification pursuant to Rule 90) ofthe North Carolina Rules of Civil Procedure. Because the
Rule 9(j) certification is lacking, Defendants contend, all of Plaintiffs state law claims must be
dismissed. The Court disagrees.
North Carolina Rule of Civil Procedure 9CD And The Erie Doctrine
Defendants' Motion requires the Court to confront a conflict between federal and state law
and to determine whether and to what extent North Carolina's medical malpractice pleading rules
must be enforced by a federal court sitting in diversity. Federal courts sitting in diversity or
exercising supplemental jurisdiction apply state substantive law and federal procedural law. Erie
R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). As the Supreme Court has observed, however, "[t]he
line between 'substance' and 'procedure' shifts as the legal context changes. 'Each implies different
variables depending upon the particular problem for which it is used.' " Hanna v. Plumer, 380 U.S.
460,471 (1965) (quoting Guaranty Trust Co. o/New York v. York, 326 U.S. 99 (1945)).
In Hanna, the Supreme Court announced a bifurcated test to evaluate state law under the Erie
doctrine. First, federal courts should "apply the federal rules of civil procedure to the exclusion of
any contrary state procedure as long as the rule is both constitutional and within the scope of the
rules' enabling act." Ferrero v. Associated Materials Inc., 923 F.2d 1441, 1448 (1Ith Cir.1991)
(citing Hanna ). If, however, there is no federal rule directly on point, the court should consider the
twin aims of Erie in deciding which law to apply. In this case, the second prong of Hanna applies
and mandates application of Rule 9(j) to Plaintiffs state law medical malpractice claims.
North Carolina Rule of Civil Procedure 90) Is a Substantive Law for Erie
In federal courts, Rule 8 ofthe Federal Rules of Civil Procedure creates the general pleading
standard for claims. See Iqbal, 129 S. Ct. at 1953-54. Rule 8 provides that a claim must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court
already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief;
(3) a demand for the relief sought, which may include relief in the alternative or different
types of relief.
Fed. R. Civ. P. 8(a). The federal rules have no special pleading requirements for medical malpractice
In North Carolina state courts, on the other hand, a complaint that includes claims for medical
malpractice is governed by North Carolina Rule of Civil Procedure 90). The stringent North
Carolina rule provides that complaints alleging medical malpractice must 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 expert witness 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. R. Civ. P. 90).
Were N.C. R. Civ. P. 90) applied as a rule of procedure in federal court, it would directly
conflict with the federal pleading rules by requiring a more demanding pleading standard. In practice,
however, federal courts in North Carolina have generally characterized and applied Rule 9(j) as a
substantive element of a medical malpractice claim, rather than as a procedural requirement. See,
e.g., Moore v. Pitt County Memorial Hosp., 139 F. Supp. 2d. 712,713 (E.D.N.C. 2001). The Court
agrees with these courts, and finds that Rule 9(j) is a substantive law for Erie purposes.
Although Rule 9(j)'s substantive provisions apply in this case, their application is narrow.
The rule only works a dismissal ofthose state law claims which actually allege medical malpractice.
Cf Gregory v. Schatzman, 1:08-CV-497, p. 4-5, dkt. 23 (M.D.N.C. Dec. 8,2009) (partially granting
motion to dismiss with respect to medical malpractice claim for failure to comply with Rule 9(j)'s
certification requirement, but denying with respect to breach of contract, negligence, and federal
claims). Of course, any non-medical malpractice state law claims in a diversity action are governed
by the federal rules of civil procedure, which contain no special certification requirement analogous
to Rule 9(j).
Accordingly, the Court finds that N.C. R. Civ. P. 9(j) applies in this case as a substantive
aspect of North Carolina law. But the rule's dismissal remedies, under the principles announced in
Erie and its progeny, extend only to the medical malpractice claims themselves. Thus, the next task
before the Court is to determine which of Plaintiffs claims sound in medical malpractice. Once
identified, the medical malpractice claims will be dismissed under Fed. R. Civ. P. 12(b)(6) for lack
of proper certification.
b. Plaintiffs Medical Malpractice Claims Under North Carolina Law
In North Carolina, a claim that arises out of clinical care provided by a medical provider to
the patient sounds in medical malpractice, but a claim that arises out of policy, management, or
administrative decisions sounds in ordinary negligence. Estate ofWaters v. Jarman, 144 N.C. App.
98,103 (N.C. Ct. App. 2001).
Here, Count Eight alleges that Defendants Vaughn and Southern Health Partners, Inc.,
through their agents, "breached their duty to [Plaintiff] by refusing his requests for medical attention
when they knew he had serious medical needs." Am. Compl. ~ 155. Count Eight further alleges "that
[Defendants'] refusal of medical attention created an unjustifiably high risk of serious injury and
needless suffering." Id. Because Count Eight alleges injuries arising from the clinical care provided
by the Defendants to the Plaintiff, this Count sounds in medical malpractice and is subject to
dismissal since the claim has not been certified under Rule 9U).
Count Nine alleges a number of claims, including that:
(1) Sheriff Vaughan, in his official capacity, was negligent in failing to properly supervise,
hire, retain, manage, train and control his deputies,
(2) that Plaintiff's Inmate Sick Call Slips ("ISCS' s") were never delivered to the medical
staff by the Sheriff's deputies, and
(3) that Plaintiff's requests for medical treatment were refused.
161-62, 164, and 164 (c).
The failure ofthe deputies to deliver ISCS's to the medical staffis an administrative process
failure allegedly resulting from SheriffVaughan's failure to properly supervise, hire, retain, manage,
train, and control his deputies. These particular claims contained in Count Nine sound in simple
negligence, and are not subject to Rule 9(j)' s mandate. They are properly before this Court under the
Federal Rules of Civil Procedure.
Count Nine's claim involving the refusal of the medical staff to provide him with needed
medical attention, on the other hand, undoubtedly sounds in medical malpractice. Because that claim
has not been properly certified as required under North Carolina law, it is subject to dismissal.
Thus, the Court finds that Count Eight, in its entirety, and parts of Count Nine are subject to
dismissal because the referenced claims allege medical malpractice under North Carolina state law
yet they lack the proper certification under N.C. R. Civ. P. 9U). Because the failure to comply with
Rule 90) is grounds for dismissal of a medical malpractice claim, Moore v. Pitt County Mem'l
Hosp., 139 F. Supp. 2d. 712,713 (E.D.N.C. 2001), the Court grants the Motion to Dismiss in part
and dismisses the claims to the extent medical malpractice is alleged.
Based on the foregoing, Defendant's Motion to Dismiss [DE 21] is GRANTED IN PART
and DENIED IN PART. Count Eight and that portion of Count Nine alleging medical malpractice
are hereby DISMISSED. The Motion to Dismiss is DENIED as to all other Counts and claims.
DONE AND ORDERED, in chambers, this ~ day of May, 2011.
TERRENCE W. BOYLE
UNITED STATES DISTRIC
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