GUNTER v. SOUTHERN HEALTH PARTNERS, INC. et al
Filing
87
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 09/20/2017, that the Motion for Partial Judgment on the Pleadings filed by Moving Defendants Southern Health Partners, Inc., Jason Junkins, Sandra Hunt, Fran Jackson, and Manuel Maldonado (Doc. 63 ) is DENIED. FURTHER ORDERED that Plaintiff's Contingent Motion (Doc. [79)] is DENIED AS MOOT. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DAVID RAY GUNTER,
)
)
Plaintiff,
)
)
v.
)
)
SOUTHERN HEALTH PARTNERS, INC., )
et al.,
)
)
Defendants.
)
1:16CV262
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This matter is before the court on a Motion for Partial
Judgment on the Pleadings filed by Defendants Southern Health
Partners, Inc., Jason Junkins, Sandra Hunt, Fran Jackson, and
Manuel Maldonado (collectively “Moving Defendants”). (Doc. 63.)
Plaintiff filed a response in opposition (Doc. 75); Moving
Defendants filed a reply (Doc. 77); and Plaintiff filed a
surreply (Doc. 78). This matter is now ripe for resolution, and
for the reasons stated below, Moving Defendants’ motion for
partial judgment on the pleadings will be denied.
Also before the court is Plaintiff’s Contigent Motion (Doc.
79) to which Moving Defendants and Defendants Davie County, Andy
Stokes, Cameron Sloan, Stokes County, Mike Marshall, Eric Cone,
Western Surety Company, and Ohio Casualty Company have responded
in opposition. (Docs. 81, 82.) Plaintiff has filed replies
(Docs. 85, 86). For the reasons stated herein, Plaintiff’s
motion will be denied as moot.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was diagnosed with a heart defect as an infant.
(Second Amended Complaint (“Second Am. Compl.”) (Doc. 57) ¶ 79.)
Plaintiff’s physicians prescribed medication to maintain his
heart health and circulatory system, including Coumadin, an
anticoagulant. (Id. ¶ 83.) The prescribed medications are
essential in maintaining Plaintiff’s health. (Id. ¶ 84.)
Plaintiff must take regular doses of his medications, including
Coumadin, to maintain levels of the medicine at a therapeutic
level. (Id. ¶¶ 85-87.)
On November 6, 2012, Plaintiff was arrested in Forsyth
County, North Carolina. (Id. ¶ 89.) Plaintiff remained in
Forsyth County that night. (Id.) On November 7, 2012, Plaintiff
was transferred to the Davie County local confinement facility.
(Id. ¶ 92.) Plaintiff did not receive proper doses of Coumadin
in a timely manner while confined at the Davie County local
confinement facility despite making efforts to advise and alert
all appropriate officials to his medical condition and need for
medical care. (Id. ¶¶ 100-01.)
- 2 -
Plaintiff was transferred from the Davie County local
confinement facility to the Stokes County local confinement
facility on November 16, 2012. (Id. ¶ 104.) The records provided
to Plaintiff reflect that no Coumadin was administered to
Plaintiff on November 16, 17, or 18. (Id. ¶ 107.) “Emergency”
doses of Coumadin were administered to Plaintiff beginning
November 19, 2012. (Id. ¶ 108.)
Plaintiff was released from the Stokes County local
confinement facility on November 21, 2012. (Id. ¶ 114.) Shortly
thereafter, Plaintiff went to Wake Forest Baptist Medical Center
for evaluation, where physicians determined that the
interruptions in Coumadin, which occurred while Plaintiff was
confined at the Davie County and Stokes County local confinement
facilities, caused Plaintiff to develop blood clots which
migrated to his gastrointestinal tract, creating intestinal
blockages. (Id. ¶¶ 115-16.) As a result, Plaintiff required
several surgeries and suffered numerous other complications.
(Id. ¶¶ 117-22.)
Plaintiff suffered pain, loss of quality of life, reduced
life expectancy, medical expenses, and anticipated future
medical expenses as a result of the interruption in Coumadin
that occurred while he was confined at the Davie County and
- 3 -
Stokes County local confinement facilities from November 7,
2012, to November 21, 2012. (Id. ¶ 123.)
Plaintiff commenced the present action in the Randolph
County Superior Court Division of the State of North Carolina on
November 6, 2015, by filing an Application Extending Time to
File Complaint (Petition for Removal, Ex. B (Doc. 1-2)), and a
Motion Extending Statute of Limitations in Medical Malpractice
Action (Petition for Removal, Ex. C (Doc. 1-3)). Plaintiff was
granted permission to file a complaint up to and including
November 26, 2015, by order of the Assistant Clerk of Superior
Court. (Doc. 1-2.) By order of the Superior Court Judge, the
statute of limitations for Plaintiff’s medical malpractice
action was extended to and including March 4, 2016. (Doc. 1-3.)
Plaintiff filed his original Complaint on November 25,
2015, against Southern Health Partners, Inc. Sandra Hunt, Fran
Jackson, and others alleging the following claims: Injunction;
Official Capacity Claims against the State of North Carolina;
Official Capacity Claims against Davie County, Davie County
Board of Commissioners, Stokes County, and Stokes County Board
of Commissioners; Official Capacity Claims against Defendant
Sheriffs and their Deputies; Direct Claims against Sheriffs and
Jailers; Injury to Prisoner by Jailer N.C. Gen. Stat. § 162-55;
Action on Sheriffs’ Bond; Negligent Supervision; Negligence of
- 4 -
Southern Health Partners (“SHP”), Fran Jackson, and Sandra Hunt;
42 U.S.C. § 1983 Claims against SHP, Fran Jackson, and Sandra
Hunt; False Imprisonment; and Torture and Intentional Infliction
of Emotional Distress. (Complaint (“Compl.”) (Doc. 23) at 2737.) The first Complaint did not contain a 9(j) certification
pursuant to N.C. Gen. Stat § 1A-1, Rule 9(j) (“9(j)
certification”).
Plaintiff filed an Amended Complaint in this matter on
March 3, 2016, adding Defendant Manuel Maldonado and adding 42
U.S.C. § 1983 claims against North Carolina Defendants,
Defendants Boards of County Commissioners, and Defendant
Sheriffs and their Employees, as well as adding a Medical
Malpractice claim. (Amended Complaint (“Am. Compl.”) (Doc. 26)
at 5, 40-43.) The Amended Complaint contained a “9(j) Medical
Malpractice Certification.” (Id. at 87.) The Amended Complaint
also alleged negligence under the common law doctrine of res
ipsa loquitur. (Id. at 40-43.)
A Petition for Removal to this court was filed on April 1,
2016. (Doc. 1.) On December 27, 2016, with leave of court,
Plaintiff filed a Second Amended Complaint to add Defendant Ohio
Casualty as the proper defendant in lieu of Marsh USA
Incorporated. (Order (Doc. 56); Second Am. Compl (Doc. 57).)
Moving Defendants filed an Answer to the Second Amended
- 5 -
Complaint on January 9, 2017. (Doc. 61.) Moving Defendants filed
the present Motion for Partial Judgment on the Pleadings on
February 22, 2017. (Mot. for Partial J. on Pleadings (Doc. 63).)
II.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(c), a party may
move for judgment on the pleadings “[a]fter the pleadings are
closed — but early enough not to delay trial.” Fed. R. Civ. P.
12(c). Such motions are “designed to dispose of cases when the
material facts are not in dispute and the court can judge the
case on its merits by considering the pleadings . . . .” Preston
v. Leake, 629 F. Supp. 2d 517, 521 (E.D.N.C. 2009).
Rule 12(c) motions are judged by the same standards as Rule
12(b)(6) motions. Drager v. PLIVA USA, Inc., 741 F.3d 470, 474
(4th Cir. 2014). Accordingly,
a motion for judgment on the pleadings “should only be
granted if, after accepting all well-pleaded
allegations in the plaintiff’s complaint as true and
drawing all reasonable factual inferences from those
facts in the plaintiff’s favor, it appears certain
that the plaintiff cannot prove any set of facts in
support of his claim entitling him to relief.”
Id. (citations omitted). However, Rule 12(c) motions are limited
in scope and courts must be “mindful that ‘[a] Rule 12(c) motion
tests only the sufficiency of the complaint and does not resolve
the merits of the plaintiff’s claims or any disputes of fact.’”
- 6 -
Massey v. Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (quoting
Drager, 741 F.3d at 474).
When assessing a Rule 12(c) motion, the complaint, “the
answer and any documents incorporated by reference in the
pleadings may be considered. The ‘factual allegations of the
answer are taken as true, to the extent “they have not been
denied or do not conflict with the complaint.”’”
1
Blue Rhino
Glob. Sourcing, Inc. v. Well Traveled Imps., Inc., 888 F. Supp.
2d 718, 721 (M.D.N.C. 2012) (citations omitted). However, courts
“are not obliged to accept allegations that ‘represent
unwarranted inferences, unreasonable conclusions, or arguments,’
or that ‘contradict matters properly subject to judicial notice
or by exhibit.’” Massey, 759 F.3d at 353 (citations omitted).
III. ANALYSIS
Moving Defendants argue that they are entitled to a partial
judgment on the pleadings on Plaintiff’s eighth claim for
Moving Defendants assert evidentiary objections under
Local Rule 7.6 to Exhibits 1-5 of Plaintiff’s Memorandum of Law
in Opposition to Motion for Partial Judgment on the Pleadings
(Doc. 75), and to any discussion in Plaintiff’s Memorandum of
the information contained in those exhibits “because they are
not part of the pleadings at issue in this Motion for Partial
Judgment on the Pleadings.” (Moving Defs.’ Reply (Doc. 77) at
9-10.) Moving Defendants’ evidentiary objections to Docs. 75-1
through 75-5 are sustained and the information contained in
these exhibits will not be considered by this court for purposes
of this opinion.
1
- 7 -
Negligent Supervision, Plaintiff’s ninth claim for Negligence,
and Plaintiff’s sixteenth claim for Medical Malpractice because
Plaintiff failed to include a proper 9(j) certification. (Mot.
for Partial J. on Pleadings (Doc. 63) at 2.) Moving Defendants
argue that they are further entitled to a partial judgment on
the pleadings on Plaintiff’s eleventh claim for False
Imprisonment and Plaintiff’s twelfth claim for Torture and
Intentional Infliction of Emotional Distress because these
claims are pled against “defendants” generally, thereby
preventing Moving Defendants from being able to identify the
claims they need to defend against. (Id.)
A.
Rule 9(j) Certification
Effective October 1, 2011, N.C. Gen. Stat. § 1A-1, Rule
9(j) (“Rule 9(j)”) states that any complaint alleging medical
malpractice shall be dismissed unless:
(1) The pleading specifically asserts that the medical
care and all medical records pertaining to the alleged
negligence that are available to the plaintiff after
reasonable inquiry have 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 and all medical records pertaining to the alleged
negligence that are available to the plaintiff after
reasonable inquiry have 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
- 8 -
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. Gen. Stat. § 1A-1, Rule 9(j). The Supreme Court of North
Carolina has stated that “medical 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.” Thigpen v. Ngo,
355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002).2 “A plaintiff's
compliance with Rule 9(j) requirements clearly presents a
question of law to be decided by a court . . . .” Carlton v.
Melvin, 205 N.C. App. 690, 692, 697 S.E.2d 360, 362 (2010)
(citation omitted).
Here, Plaintiff alleges that he complied with the 9(j)
certification requirements by including the following language
with his Amended Complaint:
2.
The medical care and medical records at issue in
this case that are available to Plaintiff after
The Thigpen decision discussed Rule 9(j) certification
prior to its amendment in 2011. However, the Supreme Court of
North Carolina, noting the 2011 amendment, acknowledged that
“the general requirements remain substantially unchanged.” Moore
v. Proper, 366 N.C. 25, 29 n.1, 726 S.E.2d 812, 816 n.1 (2012).
2
- 9 -
reasonable inquiry have been reviewed by a
medical professional who is reasonably expected
to qualify as an expert witness under Rule 702 of
the North Carolina Rules of Evidence and who is
willing to testify that the medical care did not
comply with the applicable standard of care.
3.
The medical professionals include a physician's
assistant, practicing as such in a jail; a doctor
of pharmacy practicing as such in Winston Salem,
North Carolina; and, a registered nurse
practicing as such in High Point, North Carolina.
(Am. Compl. (Doc. 26) at 87.) The language of Plaintiff’s 9(j)
certification differs from the language of the Rule 9(j)
certification in the following ways:
(1)
Plaintiff’s 9(j) certification does not include the
word “all” to modify “medical records,” and describes the
medical records as the ones “at issue in this case.” (Am. Compl.
(Doc. 26) at 87.) Specifically, Plaintiff’s 9(j) certification
states “[t]he medical care and medical records at issue in this
case” have been reviewed, whereas Rule 9(j) states “the medical
care and all medical records pertaining to the alleged
negligence” have been reviewed. (Id. (emphasis added); Rule N.C.
Gen. Stat. § 1A-1, Rule 9(j)(1) (emphasis added).)
(2)
Plaintiff’s 9(j) certification states that “[t]he
medical care and medical records . . . have been reviewed by a
medical professional who is reasonably expected to qualify as an
expert witness under Rule 702 of the North Carolina Rules of
- 10 -
Evidence,” whereas Rule 9(j) states that “the medical care and
all medical records . . . have been reviewed by a person who is
reasonably expected to qualify as an expert witness under Rule
702 of the Rules of Evidence.” (Am. Compl. (Doc. 26) at 87
(emphasis added); Rule N.C. Gen. Stat. § 1A-1, Rule 9(j)(1)
(emphasis added).)
Moving Defendants do not take issue with the differences
listed in (2) above, but assert that the differences in (1) are
“a catastrophic deviation from the statutory word track . . .
constitut[ing] grounds for dismissal of Plaintiff’s claims.”
(Moving Defs.’ Mem. of Law in Supp. of Mot. for Partial J. on
the Pleadings (“Moving Defs.’ Br.”) (Doc. 64) at 9.) Moving
Defendants cite to three primary cases in support of their
position: Vaughan v. Mashburn, 795 S.E.2d 781 (N.C. Ct. App.
2016), review allowed, 797 S.E.2d 299 (N.C. 2017), and review
denied, 797 S.E.2d 4 (N.C. 2017); Alston v. Hueske, 781 S.E.2d
305 (N.C. Ct. App. 2016); and Fintchre v. Duke Univ., 241 N.C.
App. 232, 773 S.E.2d 318 (2015).
The first case cited by Moving Defendants as support for
dismissal is Vaughan v. Mashburn.3 795 S.E.2d 781. In Vaughan,
the plaintiff filed a medical malpractice complaint that stated,
A petition for discretionary review has been granted by
the North Carolina Supreme Court in Vaughan, 797 S.E.2d 299.
3
- 11 -
“the Plaintiff avers that the medical care received by [the
plaintiff] complained of herein has been reviewed.” Id. at 782.
The appellate court noted that the language in the complaint
came from a prior version of Rule 9(j) and that the plaintiff’s
9(j) certification omitted the amended 2011 language “all
medical records pertaining to the alleged negligence that are
available to the plaintiff after reasonable inquiry.” Id. at
782-83. The plaintiff conceded that her 9(j) certification
omitted the quoted language, but argued that the evidence
established she had fully complied with the substantive
requirements of Rule 9(j). Id. at 782-83, 86. In affirming the
trial court’s order dismissing the plaintiff’s medical
malpractice claim, the appellate court relied on Alston and
Fintchre in concluding that, although a “highly technical”
decision, the plaintiff’s failure to file the complaint with a
“proper” 9(j) certification warranted dismissal. Id. at 788-89.
This court is not persuaded that the holding in Vaughan
requires dismissal in this case. In Vaughan, the focus of the
defective certification was that it verified a review of the
medical care but completely omitted any reference to whether
medical records had been reviewed. As the appellate court noted
in discussing the defective certification, the 2011 amendment of
Rule 9(j) “created an additional requirement that plaintiffs
- 12 -
certify the review of their medical records, as well as their
medical care, by ‘persons reasonably expected to qualify as
expert witnesses . . . .’” Id. at 783 n.1. The plaintiff in
Vaughan completely omitted the additional requirement of
certifying the review of medical records, whereas here,
Plaintiff certified that both the medical care and medical
records have been reviewed by a medical professional reasonably
expected to qualify as an expert witness.
The second case cited by Moving Defendants is Alston v.
Hueske, 781 S.E.2d 305 (N.C. Ct. App. 2016), wherein the
plaintiff’s complaint alleged the following:
29. Prior to commencing this action, the medical
records were reviewed and evaluated by a duly Board
Certified who opined that the care rendered to
Decedent was below the applicable standard of care.
30. . . . The medical care referred to in this
complaint has been reviewed by person(s) who are
reasonably expected to qualify as expert witnesses, or
whom the plaintiff will seek to have qualified as
expert witnesses under Rule 702 of the Rules of
Evidence, and who is willing to testify that the
medical care rendered plaintiff by the defendant(s)
did not comply with the applicable standard of care.
Id. at 309-10. The court concluded that the “wording of the
complaint render[ed] compliance with 9(j) problematic,” and
further found “the wording of th[e] complaint insufficient to
meet the high standard of Rule 9(j).” Id. at 310.
- 13 -
Moving Defendants argue that the problematic wording in
Alston was the omission of the words “all medical records.”
(Moving Defs.’ Br. (Doc. 64) at 10.) However, the Alston court
actually took issue with whether the alleged expert witness
could reasonably be expected to qualify as an expert under Rule
702.4 Alston, 781 S.E.2d at 310. The court acknowledged that
although the complaint alleged “the medical care was reviewed by
someone reasonably expected to qualify as an expert
witness,” the complaint did not “properly allege the medical
records were reviewed by a person reasonably expected to qualify
as an expert witness.” Id. By alleging in the complaint that
“the medical records were reviewed and evaluated by a duly Board
Certified,” (id. at 309), the appellate court found that it did
“not have enough information to evaluate whether this witness
The court did not discuss whether “all medical records”
versus “the medical records” was problematic or was a reason for
finding the 9(j) certification defective, nor did the court
discuss whether the phrase “medical records pertaining to the
alleged negligence” versus “medical care referred to in this
complaint” was problematic or was a reason for the defective
language in the 9(j) certification. Alston v. Hueske, 781 S.E.2d
305, 309-10 (N.C. Ct. App. 2016). However, as discussed herein,
the court did not take issue with the complaint’s 9(j)
certification language related to medical care, wherein it
stated that “[t]he medical care referred to in this complaint
has been reviewed by person(s) who are reasonably expected to
qualify as expert witnesses.” Id. (emphasis added).
4
- 14 -
could reasonably be expected to qualify as an expert in th[e]
case.” Id. at 310.
It should be noted that the Alston court took no issue with
the complaint’s 9(j) certification language related to medical
care, which read “[t]he medical care referred to in this
complaint has been reviewed by person(s) who are reasonably
expected to qualify as expert witnesses, or whom the plaintiff
will seek to have qualified as expert witnesses under Rule 702
of the Rules of Evidence.” Id. at 309-10. This language differs
from the Rule 9(j) language in that it states “referred to in
this complaint” rather than “pertaining to the alleged
negligence.”
Similarly, in this case, Plaintiff’s complaint alleges that
“[t]he medical care and medical records at issue in this case
that are available to Plaintiff after reasonable inquiry have
been reviewed by a medical professional who is reasonably
expected to qualify as an expert witness under Rule 702 of the
North Carolina Rules of Evidence.” (Am. Compl. (Doc. 26) at 87.)
Plaintiff’s complaint further alleges that “[t]he medical
professionals include a physician's assistant, practicing as
such in a jail; a doctor of pharmacy practicing as such in
Winston Salem, North Carolina; and, a registered nurse
practicing as such in High Point, North Carolina.” Id. Because
- 15 -
Plaintiff’s 9(j) certification alleges that both the medical
care and medical records have been reviewed by medical
professionals reasonably expected to qualify as expert witnesses
under Rule 702 of the North Carolina Rules of Evidence, this
court is not persuaded that it is compelled to grant Moving
Defendants’ request for dismissal based on the holding in
Alston.
The third case cited by Moving Defendants in support of
their position on 9(j) certification is Fintchre v. Duke Univ.,
241 N.C. App. 232, 773 S.E.2d 318 (2015), wherein the
plaintiff’s complaint and amended complaint alleged the
following:
82. Pursuant to North Carolina General Statute
Section 1A–1, Rule 9(j), the medical care provided to
Plaintiff was reviewed by persons who Plaintiff
reasonably expects to qualify as expert witnesses
under N.C. R. Evid. 702 who are willing to testify
that the medical care at issue in this action failed
to comply with the standard of care.
Id. at 242, 773 S.E.2d at 324–25. Like the plaintiff in Vaughan,
the Fintchre plaintiff conceded that her 9(j) certification
failed to expressly state that the pre-filing evaluation
included a review of all medical records pertaining to the
alleged negligence, but argued that she had fully complied with
the substantive requirements of Rule 9(j), and should therefore
be allowed to amend her second complaint. Id. at 240, 773 S.E.2d
- 16 -
at 323. Although the primary issue before the court was “whether
the trial court should have granted plaintiff's motion to amend
the second complaint,” the court disagreed with the plaintiff’s
position on the certification and found that the 9(j)
certification was not valid because it “failed to allege that a
person reasonably expected to qualify as an expert had reviewed
all available medical records pertaining to the alleged
negligence.” Id. at 241-42, 773 S.E.2d at 324-25.
Again like the plaintiff in Vaughan, the Fintchre plaintiff
completely omitted the additional requirement of certifying the
review of medical records. Because Plaintiff in this case
certified that both the medical care and medical records had
been reviewed by a medical professional who is reasonably
expected to qualify as an expert witness, this court is not
persuaded that Fintchre requires a dismissal of Plaintiff’s
medical malpractice claims.5
B.
Rule 9(j) 120-day Extension
For medical malpractice cases, in addition to the 9(j)
certification, Rule 9(j) also provides that
Because this court finds that a proper 9(j) certification
was filed pursuant to Rule 9(j)(1), it is not necessary for this
court to determine, at this point, whether Plaintiff’s Complaint
also “alleges facts establishing negligence under the existing
common-law doctrine of res ipsa loquitur” pursuant to Rule
9(j)(3).
5
- 17 -
Upon motion by the complainant prior to the expiration
of the applicable statute of limitations, a resident
judge of the superior court for a judicial district in
which venue for the cause of action is appropriate . .
. may allow a motion to extend the statute of
limitations for a period not to exceed 120 days to
file a complaint in a medical malpractice action in
order to comply with this Rule, upon a determination
that good cause exists for the granting of the motion
and that the ends of justice would be served by an
extension.
N.C. Gen. Stat. § 1A-1, Rule 9(j). The North Carolina Supreme
Court has held that “once a party receives and exhausts the 120–
day extension of time in order to comply with Rule 9(j)'s expert
certification requirement, the party cannot amend a medical
malpractice complaint to include expert certification. . . .
Rule 9(j) expert review must take place before the filing of the
complaint.” Thigpen, 355 N.C. at 205, 558 S.E.2d at 167. The
Court reasoned that “[a]llowing a plaintiff to file a medical
malpractice complaint and to then wait until after the filing to
have the allegations reviewed by an expert would pervert the
purpose of Rule 9(j).” Id. at 204, 558 S.E.2d at 166-67.
In Thigpen, prior to filing any complaint, the plaintiff
requested and received the 120–day extension to comply with the
9(j) certification requirement. Id. at 200, 558 S.E.2d at 165.
Before the expiration of the extension, the plaintiff filed a
medical malpractice complaint, but did not include a proper 9(j)
certification. Id. Six days later, after the expiration of the
- 18 -
extension and statute of limitations, the plaintiff filed an
amended complaint that included the 9(j) certification. Id. The
Court found that because the plaintiff exhausted the 120-day
extension and failed to file an appropriate 9(j) certification
within that time, the complaint was properly dismissed. Id. at
205, 558 S.E.2d at 167.
In a slightly different case, the plaintiff in Brown v.
Kindred Nursing Ctrs. E., L.L.C. filed a medical malpractice
complaint without a 9(j) certification. 364 N.C. 76, 78, 692
S.E.2d 87, 88 (2010). Two days later, the plaintiff filed a
motion requesting the 120-day extension, which was granted. Id.
Within the 120-day extension timeframe, the plaintiff filed an
amended complaint with the proper 9(j) certification. Id. at 7879, 692 S.E.2d at 88-89. In finding that the complaint should
have been dismissed, the Court stated that instead of moving for
the 120-day extension to locate a certifying expert before
filing the complaint, the “plaintiff alleged malpractice first
and then sought to secure a certifying expert. This is the exact
course of conduct the legislature sought to avoid in enacting
Rule 9(j).” Id. at 80, 692 S.E.2d at 90. Because the plaintiff
had already filed a complaint, the trial court had no authority
to grant the request for the 120-day extension. Id. at 80-81,
692 S.E.2d at 90. The Court concluded that the 120-day extension
- 19 -
“is for the limited purpose of filing a complaint. . . . [It is
not] to locate a certifying expert, add new defendants, and
amend a defective pleading.” Id. at 84, 692 S.E.2d at 92.
The North Carolina court of appeals has interpreted this
holding to mean that it prevents a plaintiff from using the 120–
day extension to locate a certifying expert only if he has
already filed a defective complaint prior to obtaining the
extension. See Alston, 781 S.E.2d at 309 (stating that the Rule
9(j) 120-day extension “provides an avenue to extend the statute
of limitations in order to provide additional time, if needed,
to meet the expert review requirement,” but that the extension
“may not be used to amend a previously filed complaint”).
The facts in this case differ somewhat from both Thigpen
and Kindred Nursing. Here, prior to filing a complaint,
Plaintiff moved for a 20-day extension pursuant to Rule 3 of the
North Carolina Rules of Civil Procedure for claims “based upon
state and federal constitutional law, statutory law, and common
law, for . . . personal injuries and disability [Plaintiff]
sustained as a result of the intentional and negligent acts and
omissions, and defective policies, procedures and protocols of
Defendants.” (Petition for Removal, Ex. B (Doc. 1-2) at 2.) That
same day, Plaintiff moved for the 120-day extension under Rule
9(j) claiming “Plaintiff did not receive suitable medical care
- 20 -
or attention, and has suffered catastrophic injuries as a
proximate result.” (Petition for Removal, Ex. C (Doc. 1-3) at
2.) Within the 20-day extension under Rule 3, Plaintiff filed
the original Complaint, and within the 120-day extension under
Rule 9(j), Plaintiff filed the Amended Complaint, which included
a medical malpractice claim and a 9(j) certification. (Compl.
(Doc. 23); Am. Compl. (Doc. 26).)
Moving Defendants argue that Plaintiff’s original Complaint
alleged claims “sounding in medical malpractice” and, therefore,
required a 9(j) certification. (Moving Defs.’ Br. (Doc. 64) at
13-17.) Moving Defendants further argue that, based on the cases
cited above, because the original Complaint did not have a 9(j)
certification, Plaintiff improperly used the 120-day extension
to amend his original Complaint in an attempt to comply with
Rule 9(j), and therefore, this court should dismiss Plaintiff’s
claims for negligent supervision, negligence, and medical
malpractice. (Id.) In opposition, Plaintiff asserts that his
original Complaint did not include claims for medical
malpractice, only ordinary negligence, thus a 9(j) certification
was not required. (Doc. 75 at 12.) Plaintiff asserts that he
alleged claims of ordinary negligence for administrative and
management deficiencies based on allegations that “defendants
deliberately and maliciously established policies which deprive
- 21 -
inmates of care” and not on “allegations regarding violations of
the standard of care.” (Id. at 13-14.)
Rule 9(j) relates to “[a]ny complaint alleging medical
malpractice by a health care provider pursuant to G.S.
90-21.11(2)a. in failing to comply with the applicable standard
of care under G.S. 90-21.12.” N.C. Gen. Stat. § 1A-1, Rule 9(j).
Section 90-21.11 of the North Carolina General Statutes defines
a “[m]edical 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)(a). “Professional
services” has been defined by the North Carolina court of
appeals 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.’” Gause v. New Hanover Reg'l Med. Ctr., 795 S.E.2d 411,
415 (N.C. Ct. App. 2016) (quoting Sturgill v. Ashe Mem’l Hosp.,
Inc., 186 N.C. App. 624, 628, 652 S.E.2d 302, 305 (2007)). The
North Carolina Court of Appeals has further discussed the
distinction between ordinary negligence and medical malpractice
in the context of corporate negligence stating:
- 22 -
[C]orporate 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.
Estate of Waters v. Jarman, 144 N.C. App. 98, 103, 547 S.E.2d
142, 145 (2001).
Plaintiff’s case before the court is distinguishable from
the cases cited by Moving Defendants and Plaintiff. The Sturgill
case cited by Moving Defendants on this issue involves claims
regarding a single failure or event of alleged negligent medical
treatment of the plaintiff. Cases cited by Plaintiff involve
issues of violations of hospital rules or activities that were
predominately physical or manual. See, e.g., Norris v. Rowan
Mem'l Hosp., Inc., 21 N.C. App. 623, 623, 205 S.E.2d 345, 346
(1974); Lewis v. Setty, 130 N.C. App. 606, 607, 503 S.E.2d 673
(1998). This case however, deals with multiple allegations
involving clinical patient care; policy, management, and
administrative decisions; as well as other claims. Furthermore,
the North Carolina courts have not discussed the interplay of
Rule 3 and Rule 9(j) in a case involving claims for both medical
malpractice and ordinary negligence such as the one before this
- 23 -
court. However, the court of appeals did address the interplay
of the two rules in a different situation.
In Carlton v. Melvin, 205 N.C. App. 690, 697 S.E.2d 360
(2010), the court was presented with a plaintiff attempting “to
extend the statute of limitations by a total of 140 days, using
both Rule 9(j) and Rule 3.” Id. at 693, 697 S.E.2d at 363. In
Carlton, the plaintiffs received the 120-day extension under
Rule 9(j). Id. at 691, 697 S.E.2d at 362. On the last day of the
120-day extension, rather than file a complaint, the plaintiffs
issued a summons and moved for a 20-day extension under Rule 3.
Id. On the last day of the 20-day extension, the plaintiffs
filed a complaint for wrongful death and negligent infliction of
emotional distress. Id. The court of appeals concluded that the
plaintiffs were barred from a Rule 3 extension after already
obtaining a Rule 9(j) extension and that the wrongful death
claim was appropriately dismissed. In citing the North Carolina
Supreme Court, the Carlton court noted that:
[w]here there is one statute dealing with a subject in
general and comprehensive terms, and another dealing
with a part of the same subject in a more minute and
definite way, the two should be read together and
harmonized, if possible, with a view to giving effect
to a consistent legislative policy; but, to the extent
of any necessary repugnancy between them, the special
statute, or the one dealing with the common subject
matter in a minute way, will prevail over the general
statute . . . unless it appears that the legislature
intended to make the general act controlling[.]
- 24 -
Id. at 695, 697 S.E.2d at 364 (quoting Nat'l Food Stores v. N.C.
Bd. of Alcoholic Control, 268 N.C. 624, 628–29, 151 S.E.2d 582,
586 (1966)). The Carlton court concluded that “the legislature
intended Rule 9(j) to provide a comprehensive framework for the
‘initiation’ of medical malpractice actions,” and found that the
plaintiffs could not toll or further extend the statute of
limitations under Rule 3, and thus were required to file a
complaint within the 120-day extension. Id. at 695-96, 697
S.E.2d at 364.
As discussed above, in this case, Plaintiff filed for an
extension under both Rule 3 and Rule 9(j) on the same day.
Pursuant to his Rule 3 motion, Plaintiff was granted an
extension to and including November 26, 2015. (Petition for
Removal, Ex. B (Doc. 1-2) at 2.) Pursuant to his Rule 9(j)
motion, Plaintiff was granted an extension to and including
March 4, 2016, which would have been 119 days from the date of
both motions. (Petition for Removal, Ex. C (Doc. 1-3) at 2.)
Plaintiff did not seek to extend the statute of limitations for
an additional 20 days after the Rule 9(j) extension or an
additional 120 days after the Rule 3 extension. Plaintiff filed
his original Complaint and Amended Complaint within that 119
days.
- 25 -
It appears to this court that Plaintiff sought a Rule 3
extension for claims based on “the intentional and negligent
acts and omissions, and defective policies, procedures and
protocols of Defendants,” and within the 20-day extension filed
his original Complaint on November 25, 2015, asserting claims of
negligent administration and systemic failures under statutory
law and common law. (Petition for Removal, Ex. B (Doc. 1-2) at
2; Compl. (Doc. 23).) At the same time, Plaintiff also sought a
Rule 9(j) extension for medical malpractice claims based on the
lack of “suitable medical care or attention” provided to him,
and within 120 days filed his Amended Complaint on March 3,
2016, asserting medical malpractice claims and including a 9(j)
certification. (Petition for Removal, Ex. C (Doc. 1-3) at 2; Am.
Compl. (Doc. 26).) This court does not find that Plaintiff
improperly used the 120-day extension to amend a defective
medical malpractice complaint, and therefore, denies Moving
Defendants’ motion to dismiss on this basis.6 Cf. Williams v.
Haigwood, No. 5:08-CT-3138-BO, 2012 WL 4483883, at *7-8
(E.D.N.C. Sept. 27, 2012) (unpublished) (denying motion to
This court notes that “if discovery subsequently
establishes that the [9(j) certification] statement is not
supported by the facts, then dismissal” will be appropriate.
Ratledge v. Perdue, 239 N.C. App. 377, 379, 773 S.E.2d 315, 317
(2015).
6
- 26 -
dismiss and finding plaintiff was not curing a defect in the
original complaint which alleged a 42 U.S.C. § 1983 civil rights
claim and a general state law negligence claim – neither of
which require a 9(j) certification – and the amended complaint
added a medical negligence claim with a 9(j) certification).
C.
Claims for False Imprisonment, Torture and Intentional
Infliction of Emotional Distress
Moving Defendants argue that because “Plaintiff did not
allege his claims for False Imprisonment (11th Claim) and
Torture and Negligent Infliction of Emotional Distress (12th
Claim) against specific defendants, these claims should be
dismissed.” (Moving Defs.’ Br. (Doc. 64) at 19.) In their Reply,
Moving Defendants argue that because Plaintiff failed to
identify specific conduct as to any of the Defendants in these
claims, Moving Defendants are prevented from “knowing what
claims they must defend against and what specific conduct is
alleged against them.” (Doc. 77 at 8.)
The cases cited by Moving Defendants, two Tenth Circuit
cases and two North Carolina district court cases, do not
persuade this court that Plaintiff’s 11th and 12th claims should
be dismissed at this point in the litigation. These cases relied
upon by Moving Defendants concluded that the plaintiffs relied
on generalized or conclusory allegations related to “defendants”
- 27 -
generically without providing a basis to determine which claims
are alleged against each defendant. Boykin Anchor Co. v. AT&T
Corp., No. 5:10-CV-591-FL, 2011 WL 1456388, at *4 (E.D.N.C.
Apr. 14, 2011) (concluding the plaintiff had to identify
specific conduct taken by each defendant and could not rely on
generalized and conclusory allegations relating to conduct of
“all defendants” to hold a parent corporation liable); Maisha v.
Univ. of N.C., No. 1:12-CV-371, 2013 WL 1232947, at *6 (M.D.N.C.
Mar. 27, 2013), aff'd, 641 F. App’x 246 (4th Cir. 2016) (finding
plaintiff made no specific allegations as to certain individual
defendants that would give rise to a claim for relief); Robbins
v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008) (holding that
where defendants included a government agency and government
actors sued in their individual capacities the complaint should
make clear who is alleged to have done what, “to provide each
individual with fair notice as to the basis of the claims
against him or her, as distinguished from collective actions
against the state”); Bryson v. Gonzales, 534 F.3d 1282, 1290
(10th Cir. 2008) (stating that conclusory allegations that
simply name the “Defendants” generically are not helpful in
figuring out what facts the plaintiff means to allege about the
defendant’s conduct). Although this court recognizes that there
are instances where the factual detail in a complaint is too
- 28 -
generalized or conclusory to provide notice of the claim to
which the defendant is entitled, that is not the case here.
Plaintiff’s complaint, taken as a whole, provides Moving
Defendants sufficient notice as to the basis of the claims pled
against them, and this court will allow these claims to go
forward, without prejudice to reconsidering the sufficiency of
the claims at summary judgment.
IV.
CONCLUSION
For the reasons set forth herein, IT IS HEREBY ORDERED that
the Motion for Partial Judgment on the Pleadings filed by Moving
Defendants Southern Health Partners, Inc., Jason Junkins, Sandra
Hunt, Fran Jackson, and Manuel Maldonado (Doc. 63) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Contingent Motion
(Doc. 79) is DENIED AS MOOT.
This the 20th day of September, 2017.
____________________________________
United States District Judge
- 29 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?