Donnelly v. SSC Clayton Operating Company, LLC

Filing 24

ORDER DENYING AS MOOT 5 Defendant's Motion to Dismiss, and DENYING 12 Defendant's Motion to Dismiss for Failure to State a Claim. Signed by US District Judge Terrence W. Boyle on 10/24/2013. Counsel is directed to read Order in its entirety for critical information. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:13-CV-197-BO

DAVID A. DONNELLY, JR., EXECUTOR)
OF THE ESTATE OF MARGIE D.
)
EATON,
)
)
Plaintiff,
)
)
v.
)
)
SSC CLAYTON OPERATING
)
COMPANY, LLC,
)
Defendant.

ORDER

This cause comes before the Court on defendant's second motion to dismiss pursuant to
Rule 12(b)(6) ofthe Federal Rules of Civil Procedure. A hearing was held on the matter before
the undersigned on October 18, 2013, at Raleigh, North Carolina. For the reasons discussed
below, defendant's motion is denied.
BACKGROUND
Plaintiff filed this action in Johnston County, North Carolina, alleging a claim for
negligence under res ipsa loquitur. Defendant subsequently removed the action to this Court on
the basis ofthis Court's diversity jurisdiction. 28 U.S.C. §§ 1441;1332. Defendant moved to
dismiss plaintiffs complaint, and plaintiff timely filed an amended complaint. Defendant now
seeks the dismissal of plaintiffs amended complaint.
Plaintiff is the executor ofthe estate of Ms. Margie D. Eaton, who was at one time a
resident of the Brian Center Health & Retirement/Clayton, a nursing home licensed by the State of
North Carolina that is owned and operated by defendant. Ms. Eaton suffered from the effects of a
stroke, dementia, hemiplegia, aphasia, and dysphagia, required a feeding tube, and had a below-

...

knee amputation of her right leg. The complaint alleges that Ms. Eaton was bed-bound and totally
dependent on Brian Center stafffor all activities of daily living, including moving. Ms. Eaton's
care plan was updated on February 25, 2010, to note that she was at risk for falls and required the
assistance of at least two staff members for transfers. On May 25, 2010, an evaluation placed Ms.
Eaton in the highest level of lift and transfer precautions, noting that the caregiver must perform
100% ofthe task. Ms. Eaton's chart documents falls occurring on February 5, 2010, April11,
2010, and July 12, 2010, while Ms. Eaton was being turned or bathed in her bed. On July 13,
2010, Ms. Eaton's care plan was again updated to require that her bed remain in a low position,
that floor mats be placed on both sides of the bed, and that any fall-related injuries must be
reported to a physician.
On July 22, 2010, Brian Center staff allegedly noticed that Ms. Eaton was moaning more
than usual. Inspection revealed that her left knee was swollen and bruising appeared on the back
of her knee. A mobile x-ray confirmed that Ms. Eaton had a fractured left femur. The following
day, at the insistence of plaintiff, Ms. Eaton was transferred to the local hospital's emergency
department. Ms. Eaton was ultimately transferred to WakeMed in Raleigh where surgery was
performed on her fractured femur.
Plaintiff alleges there are no notations in Ms. Eaton's chart regarding a fall or any other
injury between July 12, 2010, and July 22, 2010. Accordingly, plaintiffhas pled his claim under
the doctrine of res ipsa loquitur.
DISCUSSION
l.

LEGAL STANDARD

A Rule 12(b)(6) motion tests the legal sufficiency ofthe complaint. Papasan v. Attain, 478
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U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule 12(b)(6), "the court should
accept as true all well-pleaded allegations and should view the complaint in a light most favorable
to the plaintiff." My/an Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). A complaint
must allege enough facts to state a claim for relief that is facially plausible. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). Facial plausibility means that the facts plead "allow[] the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged";
mere recitals of the elements of a cause of action supported by conclusory statements do not
suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If the factual allegations do not nudge the
plaintiffs claims "across the line from conceivable to plausible," the "complaint must be
dismissed." Twombly, 550 U.S. at 570.
II.

PLAINTIFF HAS STATED A CLAIM FOR ORDINARY NEGLIGENCE

The Court does not find that, as defendant contends, plaintiff has brought an action for
medical malpractice, but rather that plaintiff has brought an action for ordinary negligence. North
Carolina defines a 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 other health care by a health care provider." N.C. Gen. Stat. § 90-21.11 (2). It
is undisputed that a nursing home is a health care provider as that term is defined by North
Carolina law. N.C. Gen Stat.§ 90-21.11(1). When considering whether a service is
"professional" within the context of medical, dental, or other health care, it is those "medical
decision[ s] requiring clinical judgment and intellectual skill" that are deemed to be professional
services. Sturgill v. Ashe Memorial Hosp., Inc., 186 N.C. App. 624, 630 (2007).
It has been recognized that the '"duty to exercise due care for the safety of its patients' is
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independent of [a nursing home's] 'professional' services and does not necessarily implicate a
malpractice claim." Wilkes v. Lee Cnty. Nursing& Rehab. Ctr., LLC, 1:09CV505, 2010 WL
703111 (M.D.N.C. Feb. 24, 2010) (quoting Norris v. Rowan Memorial Hops., Inc., 21 N.C. App.
623, 626 (1974)). Unlike other cases in which courts have found that an action by an injured
nursing home resident sounded in medical malpractice and not ordinary negligence, plaintiff here
does not allege that defendant failed to treat Ms. Eaton or that defendant failed to provide special

care for Ms. Eaton while she was a resident at the Brian Center. See e.g. Littlepaige v. United
States, No. 12-1367, 2013 WL 2501744 *4 (4th Cir. June 12, 2013) (unpublished); Deal v. Frye
Reg'! Med Ctr, Inc., 202 N.C. App. 584 (2010) (unpublished) (medical malpractice action where
defendant failed to properly conduct a fall risk assessment that required a nursing diagnosis and
clinical judgment). Plaintiff contends only that Ms. Eaton suffered a serious injury, the cause of
which is unknown, while in the care of defendant, and that she would not have suffered such
injury in the absence of negligence.
Moreover, the Court is persuaded that the failure to keep a dependent, bed-bound nursing
home resident from falling out of the bed does not, alone, require the provision of professional
services necessitating clinical judgment. A predominately physical or manual activity has been
determined not to require specialized skills or knowledge, Sturgill v. Ashe Mem 'I Hosp., Inc., 186
N.C. App. 624, 629 (2007), and this case "more closely mirrors the cases in which [courts] have
held that the actions of the healthcare provider did not" amount to professional services. Horsley

v. Halifax Reg'! Med Ctr, Inc., 725 S.E.2d. 420, 421-22 (N.C.App. 2012) (nurse's failure to offer
patient a cane, after being informed that she had trouble standing, not a medical malpractice
action); see also Norris, 21 N.C. App. 626 (nurse's failure to raise bed side rails not a medical
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malpractice action); Lewis v. Setty, 130 N.C. App. 606, 608 (1998) (injury during removal of
patient from exam table to wheelchair not a medical malpractice action). The Court is further
informed by a recent case from the North Carolina Court of Appeals in which a resident of a Brian
Center, presumedly located in or near Charlotte, North Carolina, filed suit after sustaining injuries
as the result of a fall. That plaintiff, who like Ms. Eaton had suffered a stroke and required
assistance with mobility, was dropped by two nurses or nurses aides while they attempted to move
him from his bed to his shower chair and sustained a spinal cord injury requiring surgery. There,
the court of appeals held that the plaintiff's claim clearly sounded in ordinary negligence rather
than medical malpractice. Barrett v. SSC Charlotte Operating Co., LLC, No. COA12-1271, 2013
WL 3422023 (N.C.App. July 2, 2013) (unpublished). Based on the foregoing, the Court finds that
the instant plaintiff has stated a claim for ordinary negligence.
Ill.

PLAINTIFF HAS PLEADED SUFFICIENTLY UNDER THE DOCTRINE OF RES IPSA LOQUITUR

"Res ipsa loquitur is an evidentiary rule in which a proper factual setting permits a party to
prove the existence of negligence by merely establishing the circumstances of an occurrence that
produces injury or damage." Snow v. Duke Power Co., 297 N.C. 591, 596 (1979). A plaintiff
proceeding under res ipsa loquitur must establish that "direct proof of the cause of an injury is not
available, the instrumentality involved in the accident is under the defendant's control, and the
injury is of a type that does not ordinarily occur in the absence of some negligent act or omission."

Grigg v. Lester, 102 N.C. App. 332, 333 (1991). Plaintiff here has pleaded that direct proof of the
cause of Ms. Eaton's injury is not available as nothing appears in her chart documenting any fall
or injury. Plaintiff has pleaded that Ms. Eaton was totally dependent on defendant's staff for
movement, and as such has sufficiently pleaded that the instrumentality involved was under
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defendant's control. See Alston v. Granville Health Sys., 207 N.C.App. 264, (2010) (unpublished)
(pleading that decedent and the gurney from which she fell were under the control of defendant
sufficiently alleges instrumentality element of res ipsa). Finally, plaintiff has pleaded that the
femur fracture suffered by Ms. Eaton would not have ordinarily occurred in the absence of
negligence.
CONCLUSION
Accordingly, for the reasons discussed above, defendant's second motion to dismiss [DE
12] is DENIED. Defendant's first motion to dismiss [DE 5] is DENIED AS MOOT.

SO ORDERED, this~ day of October, 2013.

:t~~.tfq!t
TERRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE

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