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Date: 03-01-2016

Case Style: Baldwin v. RHA Health Servs., Inc

Case Number: 15-952

Judge: John M. Tyson

Court: IN THE COURT OF APPEALS OF NORTH CAROLINA

Plaintiff's Attorney: Gregory B. Thompson

Defendant's Attorney: Michael C. Allen, Jonathan H. Dunlap

Description: In October 2012, Tabatha Baldwin (“Ms. Baldwin”) was a resident of Southern
Avenue Home, a long-term residential facility for developmentally disabled persons,
located in Fayetteville, North Carolina and operated by Defendant. Ms. Baldwin was
profoundly mentally retarded and unable to communicate verbally.
At approximately 11:51 a.m. on 7 October 2012, the staff at Southern Avenue
Home contacted an on-call nurse to report Ms. Baldwin was vomiting. The on-call
nurse instructed the staff to monitor Ms. Baldwin. A follow-up telephone call was
made by the nurse at 12:27 p.m. The staff reported Ms. Baldwin had ceased vomiting
and there were no other concerns at that time. The on-call nurse requested that the
staff continue monitoring Ms. Baldwin.
The staff contacted the on-call nurse again around 1:28 p.m., and reported Ms.
Baldwin had “vomited liquid but not as much as earlier.” The staff was instructed to
start Ms. Baldwin on a clear liquids diet for twenty-four hours. The staff provided
the on-call nurse with an update on Ms. Baldwin’s status later that afternoon, and
reported she was sleeping.
The on-call nurse received another telephone call from the staff at 7:38 p.m.,
in which the staff reported Ms. Baldwin had a seizure episode “that lasted
approximate[ly] one minute.” The staff reported Ms. Baldwin had “recovered from
the seizure episode with no problems and . . . was ‘okay.’”
At 9:18 p.m., the staff informed the on-call nurse that Ms. Baldwin had
experienced a “TA (Urination)[,]” she was “a little heavy (almost like dead weight)[,]”
and they were using a wheelchair to transport her. The staff also reported Ms.
ROLLINS, EX REL. V. RHA HEALTH SERVS., INC.
Opinion of the Court
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Baldwin “did not eat dinner, but they [were] encouraging her to drink.” The on-call
nurse recommended that the staff continue monitoring Ms. Baldwin.
Defendant’s staff reported the day’s events concerning Ms. Baldwin to a
certified physician’s assistant at 10:35 p.m. The physician’s assistant was
comfortable with the home staff continuing to monitor Ms. Baldwin throughout the
night, but advised the staff to “follow up with the doctor in the morning” if Ms.
Baldwin remained stable. The physician’s assistant also advised the staff to have
Ms. Baldwin taken to the emergency department if her condition worsened.
Approximately one minute later, at 10:36 p.m., the home staff contacted the
on-call nurse to report Ms. Baldwin was “leaning over vomiting and was trying to
clear her throat.” Defendant’s staff also reported a noticeable change in Ms.
Baldwin’s breathing and asked the on-call nurse to listen over the telephone. The on
call nurse instructed the home staff to “keep [Ms. Baldwin] upright to prevent
choking.” The on-call nurse also consulted the physician’s assistant, and provided an
update on Ms. Baldwin’s worsening condition. Both health care providers decided to
send Ms. Baldwin to the emergency department for further evaluation and treatment.
The on-call nurse contacted Defendant’s staff and directed them to send Ms.
Baldwin to the emergency department. Emergency medical services (“EMS”)
transported Ms. Baldwin to Cape Fear Valley Medical Center Emergency
Department at approximately 11:19 p.m. The EMS report noted Ms. Baldwin was
ROLLINS, EX REL. V. RHA HEALTH SERVS., INC.
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“unresponsive with chief complaint of ‘Code Altered Mental Status’” and “had no gag
reflux noted.”
Upon her arrival at Cape Fear Valley Medical Center, Ms. Baldwin was
intubated for airway protection. The emergency department report noted she was
comatose, and her eyes were “fixed and dilated[.]” Ms. Baldwin was admitted into
the intensive care unit in the early morning hours of 8 October 2012. On 10 October,
Ms. Baldwin’s condition was “compatible with brain death.” Ms. Baldwin died later
that day, with the immediate cause of death reported as pneumonia, seizure disorder,
and anoxic encephalopathy.
Plaintiff filed a complaint on 10 October 2014. He alleged claims of ordinary
negligence and negligence per se against Defendant related to Ms. Baldwin’s
treatment while a resident at Southern Avenue Home on 7 October 2012. Defendant
responded by filing an answer and motion to dismiss on 25 November 2014.
Defendant moved to dismiss Plaintiff’s claim of negligence per se pursuant to North
Carolina Rules of Civil Procedure, Rule 12(b)(6), and alleged Plaintiff had “failed to
specify any specific and written law the Defendants allegedly violated which would
give rise to a negligence per se claim.”
Defendant also moved to dismiss Plaintiff’s entire complaint for failure to
comply with the specific pleading requirements of North Carolina Rules of Civil
Procedure, Rule 9(j). Defendant alleged: “Plaintiff’s Complaint sounds in medical
ROLLINS, EX REL. V. RHA HEALTH SERVS., INC.
Opinion of the Court
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malpractice, yet fails to assert 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 qualifying expert witness prior to filing this lawsuit.”
Defendant’s motion to dismiss was heard on 6 April 2015. The trial court
entered a written order granting Defendant’s motion to dismiss on 30 April 2015,
wherein it made the following findings of fact and conclusions of law:
3. Facts alleged in this Complaint sound in Medical Malpractice and accordingly this Complaint requires compliance with Rule 9(j) of the North Carolina Rules of Civil Procedure. Specifically, this Complaint contains allegations related to the professional services of one or more “health care providers” as defined by North Carolina law.
4. Plaintiff failed to comply with the substantive and pleading requirements of Rule 9(j) of the North Carolina Rules of Civil Procedure.
5. Plaintiff’s Complaint fails to assert facts sufficient to support a claim of negligence per se.
Plaintiff gave timely notice of appeal to this Court.
II. Issues
Plaintiff argues the trial court erred by granting Defendant’s motion to dismiss
pursuant to N.C. Gen. Stat. § 1A-1, Rule 9(j). He asserts his complaint was
improperly treated as a medical malpractice action. Plaintiff contends: (1) Defendant
does not fall within the statutory definition of “health care provider;” and (2) his claim
of ordinary negligence does not require an expert witness certification.
ROLLINS, EX REL. V. RHA HEALTH SERVS., INC.
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III. Standard of Review
“A plaintiff’s compliance with [N.C. Gen. Stat. § 1A-1,] Rule 9(j) . . . presents a
question of law to be decided by a court, not a jury. A question of law is reviewable
by this Court de novo.” Carlton v. Melvin, 205 N.C. App. 690, 692, 697 S.E.2d 360,
362 (citation and quotation marks omitted), disc. review denied, 364 N.C. 605, 703
S.E.2d 441 (2010). “When ruling on a motion to dismiss pursuant to Rule 9(j), a court
must consider the facts relevant to Rule 9(j) and apply the law to them.” Estate of
Wooden ex rel. Jones v. Hillcrest Convalescent Ctr., Inc., 222 N.C. App. 396, 403, 731
S.E.2d 500, 506 (2012) (citation and internal quotation marks omitted).
On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory. The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.
Holleman v. Aiken, 193 N.C. App. 484, 491, 668 S.E.2d 579, 584-85 (2008) (citation
and quotation marks omitted).
“Dismissal is warranted (1) when the face of the complaint reveals that no law
supports plaintiffs’ claim; (2) when the face of the complaint reveals that some fact
essential to plaintiffs’ claim is missing; or (3) when some fact disclosed in the
complaint defeats plaintiffs’ claim.” Walker v. Sloan, 137 N.C. App. 387, 392, 529
S.E.2d 236, 241 (2000) (citation and internal quotation marks omitted).
ROLLINS, EX REL. V. RHA HEALTH SERVS., INC.
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“[T]he trial court regards all factual allegations of the complaint as true. Legal
conclusions, however, are not entitled to a presumption of truth.” Id. (citations
omitted). This Court “conducts a de novo review of the pleadings to determine their
legal sufficiency and to determine whether the trial court’s ruling on the motion to
dismiss was correct.” Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C.
App. 70, 74, 752 S.E.2d 661, 663-64 (2013) (citation omitted).
IV. Analysis
A. Compliance with Rule 9(j)
Plaintiff contends the trial court erroneously dismissed his complaint pursuant
to N.C. Gen. Stat. § 1A-1, Rule 9(j). Plaintiff argues Rule 9(j) certification was not
required because Defendant is not a “health care provider,” as defined by N.C. Gen.
Stat. § 90-21.11.
Rule 9(j) of the North Carolina Rules of Civil Procedure sets forth the
procedures with which a plaintiff must comply when filing a medical malpractice
action. Rule 9(j) provides:
Any complaint alleging medical malpractice by a health care provider pursuant to [N.C. Gen. Stat. §] 90-21.11(2)a. in failing to comply with the applicable standard of care under [N.C. Gen. Stat. §] 90-21.12 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
ROLLINS, EX REL. V. RHA HEALTH SERVS., INC.
Opinion of the Court
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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 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) (2015) (emphasis supplied).
“Medical malpractice action” is statutorily defined, in pertinent part, 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) (2015).
N.C. Gen. Stat. § 90-21.11(1) defines “health care provider” as:
a. A person who pursuant to the provisions of Chapter 90 of the General Statutes is licensed, or is otherwise registered or certified to engage in the practice of or otherwise performs duties associated with any of the following: medicine, surgery, dentistry, pharmacy, optometry, midwifery, osteopathy, podiatry, chiropractic, radiology, nursing, physiotherapy, pathology, anesthesiology, anesthesia, laboratory analysis, rendering
ROLLINS, EX REL. V. RHA HEALTH SERVS., INC.
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assistance to a physician, dental hygiene, psychiatry, or psychology.
b. A hospital, a nursing home licensed under Chapter 131E of the General Statues, or an adult care home licensed under Chapter 131D of the General Statues.
c. Any other person who is legally responsible for the negligence of a person described by sub-subdivision a. of this subdivision, a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.
d. Any other person acting at the direction or under the supervision of a person described by sub-subdivision a. of this subdivision, a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.
N.C. Gen. Stat. § 90-21.11(1)(a)-(d) (2015) (emphasis supplied).
Plaintiff argues Defendant does not fall under one of the enumerated
definitions of “health care provider” set forth in N.C. Gen. Stat. § 90-21.11(1), and he
was not required to obtain Rule 9(j) certification because his complaint is not a
medical malpractice action. We disagree.
“In determining whether or not Rule 9(j) certification is required, the North
Carolina Supreme Court has held that pleadings have a binding effect as to the
underlying theory of plaintiff’s negligence claim.” Sturgill v. Ashe Mem’l Hosp., Inc.,
186 N.C. App. 624, 628, 652 S.E.2d 302, 305 (2007) (citations and internal quotation
marks omitted), disc. review denied, 362 N.C. 180, 658 S.E.2d 662 (2008).
ROLLINS, EX REL. V. RHA HEALTH SERVS., INC.
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The crux of Plaintiff’s argument relies on the statute’s specific inclusion of
facilities “licensed under Chapter 131[] of the General Statutes” in its definition of
“health care provider.” N.C. Gen. Stat. § 90-21.11(1)(b), (c). Plaintiff contends
Defendant is not a statutorily defined “health care provider,” because Defendant is
licensed pursuant to Chapter 122C of our General Statutes. Plaintiff’s argument
misconstrues the role Defendant’s staff played in the treatment of Ms. Baldwin, in
light of the definitions set forth in N.C. Gen. Stat. § 90-21.11(1).
Here, the factual allegations in Plaintiff’s complaint outline how Defendant’s
staff coordinated with both the on-call nurse and a physician’s assistant to address
Ms. Baldwin’s ongoing health problems throughout the day and evening of 7 October
2012. Plaintiff’s complaint clearly alleges Defendant’s staff was, at all times relevant
to this action, seeking advice and treatment options, and taking directives from the
on-call nurse and a certified physician’s assistant with regard to Ms. Baldwin’s care,
such as: (1) dietary changes; (2) positioning Ms. Baldwin to avoid asphyxiation; (3)
general patient monitoring; and (4) when to increase Ms. Baldwin’s level of care to a
hospital setting.
The factual allegations in Plaintiff’s complaint unmistakably show Defendant
and its staff were “acting at the direction or under the supervision” of persons
“described by sub-subdivision a. of this subdivision” — namely, the on-call nurse and
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a certified physician’s assistant — and are included within the statutory definition of
“health care providers” under N.C. Gen. Stat. § 90-21.11(1)(d).
The trial court correctly determined Plaintiff’s complaint “sound[s] in Medical
Malpractice and . . . requires compliance with Rule 9(j) of the North Carolina Rules
of Civil Procedure” because Plaintiff’s “[c]omplaint contains allegations related to the
professional services of one or more ‘health care providers’ as defined by North
Carolina law.” The trial court properly dismissed Plaintiff’s complaint for “fail[ure]
to comply with the substantive and pleading requirements of Rule 9(j)[.]” This
argument is overruled.
B. Ordinary Negligence
Plaintiff argues the trial court erred by dismissing his complaint pursuant to
Rule 9(j) and Rule 12(b)(6) based upon a failure to state a claim for ordinary
negligence. Plaintiff contends his complaint alleges a claim for ordinary negligence,
rather than medical malpractice, and did not require an expert witness certification
pursuant to Rule 9(j).
“[N]egligence actions against health care providers may be based upon
breaches of the ordinary duty of reasonable care where the alleged breach does not
involve rendering or failing to render professional services requiring special skills.”
Duke Univ. v. St. Paul Fire and Marine Ins. Co., 96 N.C. App. 635, 640-41, 386 S.E.2d
762, 766, disc. review denied, 326 N.C. 595, 393 S.E.2d 876 (1990). This Court has
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defined “professional services” to mean “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.” Sturgill, 186 N.C. App. at 628, 652 S.E.2d at 305 (citations and
internal quotation marks omitted) (holding the decision to apply restraints is a
“professional service” because it “is a medical decision requiring clinical judgment
and intellectual skill”).
Plaintiff’s complaint alleges Defendant “breached the duty to provide timely
and prompt access to medical care, and to properly train its non-medical staff.” This
argument is unsupported by, and at times in direct contradiction with, the factual
allegations Plaintiff asserts in his complaint. Furthermore, Plaintiff’s artful attempt
to frame his claims against Defendant as “untimely and delayed access to medical
care” would not, ipso facto, remove this action from within the purview of medical
malpractice. See Katy v. Capriola, 226 N.C. App. 470, 473, 742 S.E.2d 247, 250 (2013)
(addressing claim that failure to timely diagnose and treat congestive heart failure
resulted in delayed access to the appropriate medical care as medical malpractice
action); Tripp v. Pate, 49 N.C. App. 329, 337, 271 S.E.2d 407, 412 (1980) (addressing
claim that failure to timely diagnose and treat post-surgical infection resulted in
delayed access to appropriate medical care as medical malpractice action);
Weatherman v. White, 10 N.C. App. 480, 481, 179 S.E.2d 134, 135 (1971) (addressing
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claim that failure to timely diagnose and treat cancer resulted in delayed access to
medical care as medical malpractice action).
Plaintiff’s complaint details how Defendant’s staff regularly consulted with,
and took instruction from, the on-call nurse and physician’s assistant numerous times
over an eleven-hour period. The home staff received several directives from the on
call nurse, and undertook medical interventions in the treatment of Ms. Baldwin.
Each of the factual allegations asserted in Plaintiff’s complaint describes some kind
of health care-related service, which was provided to Ms. Baldwin under the direction
of a “health care provider.” N.C. Gen. Stat. § 90-21.11(1).
Additionally, Plaintiff’s complaint fails to allege what, if any, delay occurred in
Ms. Baldwin’s medical treatment. See Sturgill, 186 N.C. App. at 629, 652 S.E.2d at
306 (“Plaintiff does not allege that defendant had any duty to check on decedent
sooner than within an hour and a half, and makes no allegation as to how failing to
check on plaintiff during that hour and a half caused plaintiff’s injuries.”).
Plaintiff’s argument that Defendant breached its duty to provide Ms. Baldwin
with timely and prompt access to medical care is utterly unsupported by the factual
allegations in his complaint. Plaintiff’s complaint also fails to assert any factual
allegations whatsoever, which, taken as true, would tend to support his position on
appeal that Defendant did not properly train its staff.
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Opinion of the Court
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As discussed supra, Plaintiff’s allegations show Defendant’s staff was
providing health care services under the direction and supervision of the on-call nurse
and a certified physician’s assistant, both of whom are statutorily defined as “health
care providers.” These medical decisions constitute the rendering of “professional
services requiring special skill.” Duke Univ., 96 N.C. App. at 640-41, 386 S.E.2d at
766. The trial court properly determined Plaintiff’s complaint “sounds in medical
malpractice” and required Rule 9(j) certification. The trial court correctly dismissed
Plaintiff’s complaint for failure to state a claim for ordinary negligence, and failure
to comply with Rule 9(j). Plaintiff’s argument is overruled.

Outcome: Defendant falls within the statutory definition of a “health care provider,” and
Plaintiff failed to state a viable claim for ordinary negligence. Plaintiff’s complaint essentially alleged a medical malpractice action, and Rule 9(j) certification was required. Plaintiff failed to certify his complaint pursuant to Rule 9(j). The trial court’s order dismissing Plaintiff’s complaint for failure to state a claim and failure to comply with Rule 9(j) is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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