WOOD et al v. UNITED STATES OF AMERICA
Filing
45
MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 7/21/2016. The United States' motion for summary judgment (Doc. 30 ) is GRANTED as to Count two which is DISMISSED WITH PREJUDICE. Count one is DISMISSED WITHOUT PREJUDICE in the event it is susceptible to being refiled as a properly pleaded medical malpractice claim. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ETHEL THOMAS WOOD, Executor of
the Estate of James Waverly
Wood, deceased,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.
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1:14cv1004
MEMORANDUM OPINION AND ORDER
THOMAS D. SCHROEDER, District Judge.
This is an action by Plaintiff, Ethel Thomas Wood, as Executor
of the estate of her deceased husband, James Waverly Wood, alleging
negligence and premises liability against the United States under
the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671, et seq.
(“FTCA”), following Mr. Wood’s surgery and subsequent death at a
Veterans Affairs (“VA”) facility.
The United States now moves for
summary judgment on four grounds: (1) Plaintiff did not provide
notice of her current theories to the administrative agency as
required by the FTCA; (2) res ipsa loquitur is inapplicable; (3)
there are no genuine issues of material fact as to the United
States’
lack
of
ordinary
negligence;
and
(4)
Plaintiff’s
negligence claim sounds in medical malpractice but her complaint
lacks the expert certification required by North Carolina law.
(Docs. 30, 31.)
For the reasons set forth below, the United
States’ motion will be granted as follows: Plaintiff’s premises
liability and ordinary negligence claims will be dismissed, but
because Plaintiff’s negligence claim would properly sound, if at
all, in medical malpractice yet was properly exhausted, it will be
dismissed without prejudice.
I.
BACKGROUND
On August 9, 2012, Mr. Wood was admitted to the Durham
Veterans Affairs Medical Center (“Durham VA”) for four-vessel
coronary artery bypass graft surgery, commonly known as a quadruple
bypass. 1
The anesthesia team caring for Mr. Wood was led by Dr.
Christy Crockett, a fourth-year resident in her cardiac anesthesia
rotation, and Dr. Jonathan Mark, the attending anesthesiologist.
(Doc. 31-9 at 2.)
To ensure the delivery of certain medications during surgery,
Dr. Crockett placed a central line, also known as a “multi-lumen
access catheter,” into Mr. Wood’s internal jugular vein.
32-2; Doc. 35-4; Doc. 35-5 at 2-3.)
(Doc.
Dr. Crockett secured the
central line to Mr. Wood’s neck with sutures and an occlusive
dressing and verified its correct placement by ultrasound.
(Doc.
32-2; Doc. 32-3 at 4.)
When
Mr.
Wood’s
quadruple
bypass
was
completed,
the
1 Mr. Wood suffered from multiple ailments, including end-stage renal
disease (kidney failure), peripheral vascular disease that led to the
amputation of both legs, colon cancer, and diabetes. (Docs. 31-3, 314, and 31-5.)
2
anesthesiology team was tasked with transferring him from the
operating room (“OR”) table to a transport bed.
3.)
(Doc. 31-10 at 2-
Mr. Wood was connected to a multitude of medical devices,
which had to be “disconnected or otherwise moved with [Mr. Wood]
as he [was] transferred from the operating room table to the
intensive care transport bed.” (Doc. 32-1 at 3.) At approximately
2:15
p.m.,
Dr.
Crockett
and
Dr.
Mark
began
the
process
of
disconnecting devices that were not needed for transport and
connecting
devices
transport monitor.
that
were
required
(Id. at 3-4.)
for
transport
to
the
They then spent several minutes
tracing all of the various lines and tubes to make sure they were
free and clear and had enough slack to be able to move Mr. Wood
from the OR table to the transport table.
(Id.)
This process
took approximately seven minutes and concluded at 2:22 p.m.
(Id.
at 4.)
At approximately 2:22 p.m., the team moved Mr. Wood to the
transport bed using a roller board.
(Id. at 5.)
At least five
individuals assisted with the move: Dr. Crockett, Dr. Mark, a
physician’s assistant, and two OR nurses.
(Doc. 31-10 at 5.)
Crockett led the move and was located at Mr. Wood’s head.
Dr.
(Id.)
“Just before the move,” Dr. Crockett says she performed a final
check to ensure that all lines that needed to make the transfer
with Mr. Wood were free and clear.
(Id.)
In order to control the
medication lines during transfer, it was Dr. Crockett’s practice
3
to tape them together and either hold them in her hand or drape
them over her arm.
(Id.)
With the taped lines embraced between
her arm and Mr. Wood’s head, Dr. Crockett counted to three and
initiated the move.
(Id.)
However, as the team moved Mr. Wood
from the OR table to the transport bed, Dr. Crockett felt a tug.
(Id.)
She then saw that Mr. Wood’s central line had come out of
his neck during the move.
(Id.)
Although she cannot be sure, Dr.
Crockett believes that this may have happened when one of the
multiple medication lines leading from the transfusion pumps to
Mr. Wood’s central line “got caught on either the padding on the
OR bed or the side of the table itself.”
(Id.)
Dr. Crockett says she restored the flow of medication to Mr.
Wood within seconds through a peripheral IV, yet Mr. Wood nearly
simultaneously developed severe hypotension (abnormally low blood
pressure).
(Id. at 6.)
The team responded by administering large
doses of epinephrine, and the surgeon reopened Mr. Wood’s chest
and initiated open cardiac massage.
(Id.)
Mr. Wood was moved to
a separate room and died fourteen days later on August 23, 2012.
Following Mr. Wood’s death, Plaintiff filed a Standard Form
95 (“SF-95”) with the VA.
(Doc. 31-2.)
She alleged that the
disconnection of her husband’s central line during the transfer
described above proximately caused his death.
further
alleged
that
the
caregivers
(Id. at 4.)
“violated
the
She
applicable
standard of care by failing to properly connect and/or secure Mr.
4
Wood’s internal jugular line.” (Id. at 5.)
The VA subsequently
denied Plaintiff’s claim, and thereafter she filed this action in
federal court under the FTCA.
Plaintiff’s
initial
complaint
incorporated
allegations stated in her SF-95 filing.
the
(Doc. 1.)
factual
Count one
alleged “Medical Malpractice,” while count two alleged premises
liability.
(Id. at 5-6.)
Pursuant to North Carolina Rule of Civil
Procedure 9(j), N.C. Gen. Stat. § 1A-1, Rule 9(j), her complaint
contained a certificate that the medical care had been reviewed by
a person who is reasonably expected to qualify as an expert witness
and who is willing to testify that the medical care did not comply
with the applicable standard of care.
(Id. at 6.)
After the
completion of discover, however, Plaintiff moved to amend her
complaint.
(Doc. 23 at 1.)
She contended discovery had revealed
that transferring Mr. Wood was a predominantly physical or manual
activity that did not constitute a professional health care service
as required for a medical malpractice action and therefore sought
amendment to proceed under a theory of ordinary negligence.
at 2-4.)
(Id.
The United States did not object, and the court provided
leave to amend.
(Doc. 26.)
Thereafter, Ms. Wood filed the current
amended complaint, which relies on ordinary negligence, res ipsa
loquitur, and premises liability.
(Doc. 27.)
Unlike the first
complaint, the amended complaint does not contain a Rule 9(j)
expert certification.
(Id. at 7.)
5
The United States now moves
for summary judgment on the grounds set forth above.
II.
ANALYSIS
Summary judgment is proper where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law.”
Fed. R. Civ. P. 56.
“[I]n ruling on a motion
for summary judgment, the nonmoving party’s evidence ‘is to be
believed, and all justifiable inferences are to be drawn in [that
party’s] favor.’”
Hunt v. Cromartie, 526 U.S. 541, 552 (1999)
(alteration in original) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986)).
A dispute over a material fact is
genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
248.
Anderson, 477 U.S. at
The court is not permitted to weigh the evidence, assess
credibility, or resolve issues of fact.
A.
Id. at 255.
Administrative Presentation
The United States argues that Plaintiff failed to adequately
present her current claims of ordinary negligence and premises
liability to the administrative agency, a prerequisite to filing
a lawsuit.
(Doc. 31 at 19-20.)
Plaintiff responds that her
current theories were adequately presented because they are based
on the same operative facts as those contained in her SF-95.
35 at 17-18.)
(Doc.
The court agrees.
The United States enjoys sovereign immunity from suits for
damages at common law.
Perkins v. United States, 55 F.3d 910, 913
6
(4th Cir. 1995).
immunity.
Id.
The FTCA constitutes a limited waiver of this
Nevertheless, prior to proceeding with FTCA claims
in federal court, a plaintiff must first have presented her claim
to the appropriate federal agency for determination within two
years of the claim’s accrual.
Ahmed v. United States, 30 F.3d
514, 516 (4th Cir. 1994).
A claim is properly presented where it contains: “1) written
notice sufficient to cause the agency to investigate, and 2) a
sum-certain value on the claim.”
Id. at 517 (citing Adkins v.
United States, 896 F.2d 1324, 1326 (11th Cir. 1990)).
A notice is
sufficient to cause investigation where the factual predicate
permits an agency to “either reasonably assess its liability or
competently defend itself.”
Drew v. United States, 217 F.3d 193,
197 (4th Cir. 2000), reh’g en banc granted, opinion vacated, aff’d
by equally divided court without opinion, 231 F.3d 927 (4th Cir.
2000); Richland-Lexington Airport Dist. v. Atlas Props., Inc., 854
F. Supp. 400, 412 (D.S.C. 1994) (“[N]otice must be sufficiently
detailed so that the United States can ‘evaluate its exposure as
far as liability is concerned.’”) (citation omitted)).
Moreover,
“a claimant need not give the government notice of every possible
theory of recovery.”
Degenhard v. United States, No. 5:13cv685,
2015 WL 632211, at *1 (E.D.N.C. Feb. 13, 2015); Nelson v. United
States, 541 F. Supp. 816, 818 (M.D.N.C. 1982).
Plaintiff’s
SF-95
adequately
7
presented
her
ordinary
negligence claim.
Although the SF-95 is styled as a medical
malpractice claim and the amended complaint relies on ordinary
negligence, both assert the same operative facts giving rise to
injury and liability: namely, that VA agents failed to ensure that
Mr. Wood’s central line stayed intact during his transfer from the
OR table to the transport table.
(Compare Doc. 31-2, with Doc.
27.)
Under North Carolina law, medical malpractice claims and
ordinary negligence claims are governed by different standards of
care; the former requires a plaintiff to prove a violation of the
applicable medical standard of care, see N.C. Gen. Stat. § 9021.12(a), and the latter refers to the familiar reasonable person
standard, e.g., McDonald v. Moore Sheet Metal & Heating Co., 268
N.C. 496, 502, 151 S.E.2d 27, 32 (1996).
The defining distinction
between medical malpractice claims and ordinary negligence claims,
however, is that medical malpractice claims “aris[e] out of the
furnishing or the failure to furnish professional [health care]
services,”
N.C.
Gen.
Stat.
§ 90-21.12(b),
whereas
ordinary
negligence claims do not, see Goodman v. Living Ctrs.-Se., Inc.,
234 N.C. App. 330, 332-34, 759 S.E.2d 676, 678-80 (2014).
North
Carolina
Court
of
Appeals
has
defined
The
“‘professional
services’ as an act or service ‘arising out of a vocation, calling,
occupation, or employment involving specialized knowledge, labor,
or skill, and the labor [or] skill involved is predominately mental
8
or intellectual, rather than physical or manual.’”
759 S.E.2d at 678 (alteration in original).
asked
to
classify
claims
as
medical
Id. at 332,
Courts are frequently
malpractice
or
ordinary
negligence claims based on whether the injury arose from the
provision
of
professional
health
care
services.
See,
e.g.,
Littlepaige v. United States, 528 F. App’x 289, 293-94 (4th Cir.
2013)
(unpublished)
(finding
that
claim
alleged
in
terms
of
ordinary negligence sounded in medical malpractice); Lewis v.
Setty,
130
N.C.
App.
606,
608,
503
S.E.2d
673,
674
(1998)
(“[R]emoval of the plaintiff from the examination table to the
wheelchair did not involve an occupation involving specialized
knowledge or skill, as it was predominantly a physical or manual
activity.”); Norris v. Rowan Mem’l Hosp., Inc., 21 N.C. App. 623,
626, 205 S.E.2d 345, 348 (1974) (finding “the alleged breach of
duty
did
not
professional
skills”).
involve
nursing
or
the
rendering
medical
or
services
failure
to
requiring
render
special
Thus, operative facts — not labels — put parties on
notice of whether they are facing a claim for medical malpractice
or for ordinary negligence.
Any trained legal reader would be
aware that the SF-95 could state a claim under either theory,
depending on whether or not Mr. Wood’s transfer from the OR table
to the transport table involved the provision of professional
health care services.
This was sufficient to permit the agency to
assess its liability and investigate the claim.
9
The United States relies on Degenhard v. United States, No.
5:13cv685,
2015
WL
632211
(E.D.N.C.
Feb.
contrary, but that case is distinguishable.
13,
2015),
to
the
There, the plaintiffs
asserted a claim administratively for wrongful death.
Id. at *2.
Following denial of the claim, the plaintiffs brought suit in
federal district court alleging claims for wrongful death and
negligent infliction of emotional distress (“NIED”).
Id.
The
court held that the wrongful death claim asserted administratively
did not provide adequate notice of the NIED claim because the
plaintiffs’ two claims “involve[d] different facts.”
Id. at *4.
Namely, the newly asserted NIED claim required a showing of “severe
emotional distress,” whereas the wrongful death claim did not.
Id.
Therefore, the wrongful death claim did not put the agency on
notice of the need to investigate whether the plaintiffs had
suffered severe emotional distress.
Id.
Here, there are no additional facts that would have required
investigation if the agency had viewed the SF-95 as sounding in
ordinary negligence as opposed to medical malpractice. Both claims
involve determining what happened in transferring Mr. Wood from
the OR table and why he died.
To the extent the agency believed
the action sounded in medical malpractice, it needed to assess
whether the applicable medical standard of care had been met.
Evaluation
of
liability
reasonable
person
for
standard
ordinary
would
10
have
negligence
required
no
under
the
additional
investigation, and arguably less.
Knowing the operative facts,
the agency would simply have determined whether a reasonable person
in the same or similar circumstances would have acted in accordance
with the caregivers.
The SF-95 also provided sufficient notice of Plaintiff’s
premises liability claim.
The premises liability claim is based
on a property owner’s “duty to exercise reasonable care in the
maintenance
visitors.”
892 (1998).
of
their
premises
for
the
protection
of
lawful
Nelson v. Freeland, 349 N.C. 615, 632, 507 S.E.2d 882,
The SF-95 alleged that the caregivers “fail[ed] to
provide a safe environment/premises for the transfer to take
place.”
(Doc. 31-2 at 5.)
This was sufficient to alert the agency
to the need to investigate whether maintenance of the premises
played any role in the alleged injury.
Accordingly, the SF-95 provided sufficient notice of the
claims presented in the amended complaint, and the United States’
motion for summary judgment on this ground will be denied.
B.
Premises Liability
“A
plaintiff
has
an
FTCA
cause
of
action
against
the
government only if she would also have a cause of action under
state law against a private person in like circumstances.”
v. United States, 932 F.2d 301, 303 (4th Cir. 1991).
Miller
Therefore,
the substantive law of each state establishes the cause of action.
Kerns v. United States, 585 F.3d 187, 194 (4th Cir. 2009).
11
Here
that is the substantive law of North Carolina.
Plaintiff’s
amended
complaint
asserts
premises
liability
based on Defendant’s alleged failure to implement adequate safety
procedures.
(Doc. 27 at 7-8.)
Defendant’s opening brief asserted
that no evidence exists to support this claim.
(Doc. 31 at 17.)
Plaintiff’s response fails to direct this court to any evidence to
the contrary (see Doc. 35), and this court is not aware of any.
The law requires some evidence that the property owner failed to
exercise reasonable care in the maintenance of its premises.
Nelson, 349 N.C. at 632, 507 S.E.2d at 892.
But here all evidence
is directed at the treatment of the patient and not at the
maintenance of the VA facility.
Accordingly, the United States’
motion for summary judgment on this claim will be granted.
C.
Negligence Claim
The court must next determine whether Plaintiff’s negligence
claim sounds in medical malpractice or ordinary negligence.
The
United States contends that Plaintiff’s negligence claim sounds in
medical malpractice because Mr. Wood’s transfer resulted from the
provision of professional health care services.
Doc. 37 at 6-8.)
ordinary
(Doc. 31 at 9;
Plaintiff maintains that the claim sounds in
negligence
because
Mr.
Wood’s
predominantly physical or manual activity.
transfer
was
a
(Doc. 35 at 14-16.)
For the reasons that follow, the court agrees with the United
States.
12
Claims sounding in medical malpractice must comply with North
Carolina
Rule
of
Civil
Procedure
9(j),
which
requires
the
aforementioned certification that, following reasonable inquiry,
a person anticipated to qualify as an expert under North Carolina
Rule 702 is willing to testify that the medical care did not comply
with the applicable standard of care.
Rule 9(j).
Of course, claims sounding in ordinary negligence have
no such requirement.
678.
N.C. Gen. Stat. § 1A-1,
Goodman, 234 N.C. App. at 332, 759 S.E.2d at
Rule 9(j) provides that, unless res ipsa loquitor applies,
a claim sounding in medical malpractice that lacks a certification
of expert testimony “shall be dismissed.” Id. Whether a plaintiff
must comply with Rule 9(j) is a question of law.
Allen v. Cty. of
Granville, 203 N.C. App. 365, 366, 691 S.E.2d 124, 126 (2010).
Plaintiff’s negligence claim sounds in medical malpractice if
it arose from “the furnishing or failure to furnish professional
[health care] services.” N.C. Gen. Stat. § 90-21.11(2). The North
Carolina Court of Appeals has defined “’professional services’ as
an act or service ‘arising out of a vocation, calling, occupation,
or employment involving specialized knowledge, labor, or skill,
and the labor [or] skill involved is predominantly mental or
intellectual, rather than physical or manual.’”
Goodman, 234 N.C.
App. at 332, 759 S.E.2d at 678 (alteration in original).
unpublished
whether
decision,
resolving
the
the
Fourth
issue
of
13
Circuit
liability
has
also
would
In an
considered
require
the
resolution of “issues related to standards of medical care and
. . .
medical
judgment.”
Littlepaige,
528
F.
App’x
at
294
(unpublished). 2
Plaintiff
contends
that
the
labor
or
skill
involved
in
transferring Mr. Wood from the OR table was predominantly physical
or manual.
She relies upon a series of North Carolina Court of
Appeals decisions.
(Doc. 35 at 15.)
The analysis in each decision
is highly fact specific, and no case quite fits the situation
before this court.
See Goodman, 234 N.C. App. at 334, 759 S.E.2d
at 680 (finding failure to safely position an IV apparatus near
decedent’s bed, causing it to fall on decedent, involved “the
exercise of manual dexterity as opposed to the rendering of any
specialized knowledge or skill”); Norris, 21 N.C. App. at 626, 205
S.E.2d at 348 (finding failure to raise bed rails or instruct the
patient to request assistance in getting out of bed did not
constitute the rendering of professional health care services).
The most analogous case relied on by Plaintiff is Lewis v.
Setty, 130 N.C. App. 606, 503 S.E.2d 673 (1998).
There, a
quadriplegic man visited his doctor as a result of chest pains.
Id. at 607, 503 S.E.2d at 673.
Although the examination table had
2
The Fourth Circuit has cautioned that its unpublished opinions have no
precedential value but are nevertheless valuable for their persuasive
reasoning. See Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th
Cir. 2006) (recognizing that “we ordinarily do not accord precedential
value to our unpublished decisions” and that such decisions “are entitled
only to the weight they generate by the persuasiveness of their
reasoning” (citation omitted)).
14
a lever to raise or lower it, the doctor and an assistant did not
use it when moving the plaintiff from his wheelchair, and when
they attempted to return the plaintiff from the examination table
to his wheelchair, they heard a loud “pop” as his right hip
fractured.
Id.
The court found that “the removal of the plaintiff
from the examination table to the wheelchair did not involve an
occupation involving specialized knowledge or skill, as it was
predominantly a physical or manual activity.”
Id. at 608, 503
S.E.2d at 674.
If Mr. Wood’s injury resulted simply from his transfer to the
OR table, as in Lewis, then this case would be more like it.
this case involves much more than physical movement.
But
At the end
of Mr. Wood’s surgery, he was connected to an array of medical
devices, including “several medication infusion pumps, monitoring
devices/anesthesia
monitors,
and
a
ventilator
by
multiple
intravascular (IV) lines/central line, wires, and a ventilating
circuit and endotracheal tube (ETT).”
(Doc. 31-10 at 3.)
To
safely conduct a transfer, “[e]ach of the wires connecting the
patient
to
the
anesthesia
monitors
in
the
OR
needs
to
be
disconnected from their accompanying monitoring device so that
they can be reconnected to the transport monitor which is located
on the transport bed for transport.” (Id.) “[C]hest tubes/drains,
pacemaker,
foley
catheter,
pressure
transducers,
and
infusion
bags” are also connected and must move with the patient, all while
15
the patient remains “connected to the various medication infusion
pumps via the central line or IV lines.”
(Id.)
Plaintiff’s allegation that Defendant’s agents “fail[ed] to
use reasonable care to monitor Mr. Wood’s central line during the
transfer in order to be aware that the central line was at risk to
be
‘pulled
out,’”
(Doc.
27
at
6
(emphasis
added)),
must
be
evaluated in light of the undisputed complexity of the environment
in which the transfer and monitoring took place.
(Doc. 32-12 at
4 (describing the interaction of various medical devices in the OR
as “spaghetti syndrome”).)
For example, in addition to keeping
the assemblage of medical lines free and clear during transfer, it
was Dr. Crockett’s “personal responsibility . . . to insure that
the endotracheal tube [was] secured.”
(Doc. 35-2 at 2-3.)
The
endotracheal tube is critical to patient breathing and must be
reconnected to a breathing apparatus after transfer.
(Id. at 2-
5.) Managing this complexity and prioritizing tasks, all necessary
for a safe transfer, requires an understanding of the purpose and
interaction of the various medical devices such that the required
skill and knowledge is predominantly mental or intellectual. (Id.;
Doc. 31-10 at 3-6.)
It is undisputed that non-medical personnel
are not involved in such transfers, especially in the role that
Dr. Crockett served.
(Doc. 32-8 at 7.)
That the transfer also
requires the physical or manual skills of moving the patient’s
body
is
not
determinative,
because
16
these
skills
do
not
predominate. 3
Plaintiff’s expert, Dr. Michael Simon, urges a different
result.
(Doc. 35-8 at 3-4.)
Although he does not challenge Dr.
Crockett’s account of the multitude of medical devices that must
be managed during a transfer, Dr. Simon contends the dislodgment
of Mr. Wood’s central line would have been avoided if Dr. Crockett
had “applie[d] constant visualization of the medication line or
constant tactile contact near the insertion site of the line.”
(Id.)
Seeing
and
feeling
the
medication
line
in
circumstances, he contends, are ordinary physical actions.
at 4.)
these
(Id.
But interestingly, rather than contend that a reasonable
person would have maintained visual or tactical control, Dr. Simon
asserts that Dr. Crockett’s purported failure to do so violated
the applicable medical standard of care.
3
(Doc. 35-9 at 7; Doc. 35
Dr. Mark, the supervising anesthesiologist, testified as follows about
the skills involved in the transfer: “The technical skills are not very
advanced. I think I could take a competent, instructable [sic] person
who has virtually no technical medical knowledge and, by supervising
them, have them conduct the technical aspects of moving a patient, at
the head of the bed, safely.” (Doc. 35-5 at 5.) His testimony is of
limited value for several reasons. First, he is a fact witness in this
case. Second, his opinion presupposes that the skill can be mastered
with his supervision, which would likely involve the conveyance of his
medical knowledge. Third, and most importantly, his opinion too narrowly
construes the task at hand. Even though the transfer itself requires
the management of multiple medical instruments, much of the task of
executing a safe transfer is in the preparation, which involves knowledge
of how the systems function. This is illustrated by the seven minutes
of line tracing and preparation Dr. Crockett and Dr. Mark purportedly
engaged in.
(Doc. 32-1 at 3-4.)
In fact, Plaintiff asserts that
something could have gone wrong during the preparation for transfer.
(Doc. 35 at 17 (contending that Dr. Crockett “may not have been as
attentive as she thought” in checking to make sure the medication line
was clear to come over with the patient).)
17
at
5-6.)
It
is
clear
from
both
Dr.
Simon’s
testimony
and
Plaintiff’s briefing that the standard of care Dr. Simon seeks to
impose is derived from his extensive medical experience as a
cardiac anesthesiologist.
(Doc. 35 at 5-6 (“Based upon his long
experience, Dr. Simon has stated . . . that the critical elements
of accomplishing a safe transfer are continuous visualization of
the medication line and/or continuous tactical contact with the
medication line at the insertion site.”).)
It is not based upon
what a reasonable ordinary person would know because, for the
reasons
outlined
anything,
about
circumstances.
above,
the
such
a
person
intricacies
of
would
a
know
transfer
little,
under
if
the
Therefore, similar to the reasoning of the Fourth
Circuit in Littlepaige, the fact that evaluating liability for the
transfer
will
require
the
resolution
of
“issues
related
to
standards of medical care” further supports the conclusion that
this action sounds in medical malpractice.
528 F. App'x at 294.
Having reached this conclusion and because Plaintiff failed
to provide a Rule 9(j) certification, the court must address
whether Plaintiff’s medical malpractice claim can nevertheless
survive under the doctrine of res ipsa loquitur.
D.
Res Ipsa Loquitur
The United States contends that Plaintiff cannot rely on res
ipsa loquitur because central line dislodgment occurs in the
absence of negligence.
(Doc. 31 at 13-16; Doc. 37 at 4-6.)
18
Plaintiff
responds
that
central
line
inherent risk of Mr. Wood’s procedure.
dislodgment
was
(Doc. 35 at 5-8.)
not
an
For the
reasons that follow, the court finds that res ipsa loquitur is
inapplicable.
The doctrine of res ipsa loquitur is “addressed to those
situations where the facts or circumstances accompanying an injury
by their very nature raise a presumption of negligence on the part
of [the] defendant.”
Robinson v. Duke Univ. Health Sys., 229 N.C.
App. 215, 224, 747 S.E.2d 321, 329 (2013) (alteration in original)
(quoting Bowlin v. Duke Univ., 108 N.C. App. 145, 149, 423 S.E.2d
320, 322 (1992)). The doctrine only applies “when (1) direct proof
of the cause of an injury is not available, (2) the instrumentality
involved in the accident [was] under the defendant’s control, and
(3) the injury is of a type that does not ordinarily occur in the
absence of some negligent act or omission.”
Id. (alteration in
original) (quoting Alston v. Granville Health Servs., 221 N.C.
App. 416, 419, 727 S.E.2d 877, 879 (2012)).
The doctrine rarely applies in medical malpractice actions.
See Wright v. United States, 280 F. Supp. 2d 472, 481 (M.D.N.C.
2003).
This is due in part to the centrality of expert testimony
in most medical malpractice actions.
224-25, 747 S.E.2d at 329.
understand
issues
beyond
Robinson, 229 N.C App. at
Expert testimony permits the jury to
common
knowledge,
whereas
res
ipsa
loquitur is limited to those situations where the common knowledge
19
of
laypersons
Accordingly,
testimony
and
is
in
sufficient.
recognition
the
“common
Wright,
of
the
280
F.
conflict
knowledge”
Supp.
at
between
groundings
of
481.
expert
res
ipsa
loquitur, a plaintiff must be able to show, “without the assistance
of expert testimony — that the injury was of a type not typically
occurring
in
the
absence
of
some
negligence
by
defendant.”
Robinson, 229 N.C. App. at 225, 747 S.E.2d at 329 (emphasis added).
This requirement ensures that res ipsa loquitur is not applied in
medical
malpractice
claims
beyond
those
situations
where
“a
physician’s conduct is so grossly negligent or treatment is of
such nature that the common knowledge of laypersons is sufficient
to find [the essential elements].”
Wright, 280 F. Supp. 2d at 481
(alteration in original); Hayes v. Peters, 184 N.C. App. 285, 28788, 645 S.E.2d 846, 848 (2007) (“In order for the doctrine to
apply, an average juror must be able to infer, through his common
knowledge and experience and without the assistance of expert
testimony, whether negligence occurred.”); Grigg v. Lester, 102
N.C. App. 332, 335, 401 S.E.2d 657, 659 (1991) (“The common
knowledge,
experience
and
sense
of
laymen
qualifies
them
to
conclude that some medical injuries are not likely to occur if
proper care and skill is used; included, inter alia, are injuries
resulting from surgical instruments or other foreign objects left
in the body following surgery and injuries to a part of the
patient’s anatomy outside of the surgical field.”).
20
The United States has presented evidence that central line
dislodgment is an inherent risk of transfer that ordinarily occurs
in the absence of negligence. 4
(Doc. 31 at 8-9 (summarizing
evidence); Doc. 32-8 at 7-8; Doc. 32-12 at 5-6.)
To counter this
evidence, Plaintiff relies on Dr. Simon, who testified that he has
“never seen a case where the patient’s central line was pulled out
during transfer or otherwise” in his seventeen years of doing
exclusively cardiac surgery.
(Doc. 35-8 at 3.)
In his view,
dislodgment “would likely only occur” if the anesthesia provider
fails to maintain visual and/or tactical control of the medication
line. (Id.)
medication
Dr. Simon did testify, however, that he has witnessed
lines,
other
than
central
lines,
come
out
during
transfers and that he would not attribute these dislodgments to
negligence.
(Id.; Doc. 32-4 at 5-7.)
In fact, when asked, “If
you learn that a line is unintentionally pulled out, are you saying
that’s automatically a negligent situation or do you need more
information?,”
Dr.
Simon
responded
information.”
(Doc. 32-4 at 8.)
that
he
would
“need
more
In any case, Plaintiff cannot
rely on the expert testimony of Dr. Simon to establish that central
line dislodgment “does not ordinarily occur in the absence of
negligence.”
Robinson, 229 N.C. App. at 225, 474 S.E.2d at 329.
4
Because it does not affect the conclusion, the court assumes, as do
the parties, without deciding that the “injury” is the central line
dislodgment and not Mr. Wood’s cardiogenic shock, total body anoxia, and
multiple system damage and subsequent death, which the amended complaint
asserts as injury. (Doc. 27 ¶ 29.)
21
This
is
not
the
rare
medical
malpractice
case
where
a
layperson’s common knowledge is sufficient to understand that
negligence occurred.
C.f., id. at 230, 474 S.E.2d at 332 (finding
that lay knowledge and experience was sufficient to understand
that surgical connection of the patient’s anus to her vagina was
the product of negligence).
line
was
dislodged
environment.
complex
medical
(Doc. 35-2 at 2-5; Doc. 31-10 at 3-6.)
Unlike
anesthesiologist
while
As noted above, Mr. Wood’s central
being
professionals,
moved
whose
in
a
experience
and
training
permits them to understand the interaction and significance of
various medical devices, a layperson could not appreciate this
complexity without the assistance of expert testimony.
Because a
layperson would need more than his common knowledge and experience
to infer negligence, res ipsa loquitur is inapplicable and the
United States’ motion for summary judgment as to count one will be
granted.
III. CONCLUSION
For the reasons stated,
IT IS ORDERED that the United States’ motion for summary
judgment (Doc. 30) is GRANTED as follows:
1.
The United States is entitled to summary judgment on
count two alleging premises liability, which is DISMISSED WITH
PREJUDICE.
22
2.
The United States is entitled to summary judgment on
count one alleging ordinary negligence, because the FTCA claim can
only proceed, if at all, as a medical malpractice claim to which
res ipsa loquitur does not apply, but for which there is presently
no expert certification under N.C. Gen. Stat. § 1A-1, Rule 9(j).
However, because Plaintiff’s claims were adequately presented in
her SF-95 and Plaintiff’s initial complaint (which was previously
withdrawn) contained a Rule 9(j) certification, count one will be
DISMISSED WITHOUT PREJUDICE in the event it is susceptible to being
refiled as a properly pleaded medical malpractice claim.
Pursuant
to North Carolina Rule of Civil Procedure 41(b), a new action in
compliance with North Carolina Rule of Civil Procedure 9(j) based
on the medical malpractice claim may be commenced within one year
or less of this dismissal. 5
/s/
Thomas D. Schroeder
United States District Judge
July 21, 2016
5
While the court applies the saving provision of Rule 41(b), no opinion
is expressed on the effect of North Carolina’s statute of repose on any
claim Plaintiff may refile.
See N.C. Gen. Stat. § 1-15(c) (“[I]n no
event shall an action be commenced more than four years from the last
act of the defendant giving rise to the cause of action.”). Because the
four-year period may be quickly approaching (see Doc. 27 at 2 (alleging
that any negligence from the dislodgment of Mr. Wood’s central line
occurred on August 9, 2012)), however, Plaintiff is cautioned to heed
its potential impending deadline.
23
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