Date: 06-05-2001

Case Style: THE ESTATE OF JOHN WATERS, SWANNIE TAYLOR WATERS, Administratrix, Plaintiff, v. WAYNE THOMAS JARMAN;

Plaintiff's Attorney: Faison & Gillespie, by O. William Faison and John W. Jensen, for plaintiff-appellant.

Defendant's Attorney: Harris, Shields, Creech and Ward, P.A., by Robert S. Shields, Jr., for defendant-appellees.

Description: This action arises out of medical treatment provided by Drs. Wayne Jarman, Robert Bynum and John Berry to John Waters [hereinafter “decedent”] at Lenoir Memorial Hospital [hereinafter “defendant hospital”] from 8 June 1997 through 20 June 1997. Decedent was transferred to Pitt County Memorial Hospital on 20 June and died on 6 August 1997. The complaint alleges negligence on the part of the three physicians for failing to diagnose appendicitis and asserts claims against Kinston Surgical Associates and Eastern Nephrology Associates, PLLC, under the theory of respondeat superior. The complaint also asserts claims against defendant hospital under the theories of respondeat superior and corporate negligence. The corporate negligence claims allege thatdefendant was negligent by failing to adequately assess the physicians' credentials before granting hospital privileges, by continuing the physicians' privileges at the hospital, by failing to monitor and oversee the physicians' performances, and by failing to follow its own procedures.

As required by G.S. § 1A-1, Rule 9(j), the complaint certified that “[t]he medical care in this action was reviewed by persons reasonably expected to qualify as expert witnesses pursuant to Rule 702 of the North Carolina Rules of Evidence” and that those persons “are willing to testify that the medical care did not comply with the applicable standard of care.” The complaint then stated:

This pleading, however, also alleges facts establishing breaches of common law duties for which certification of compliance with Rule 9(j) is not required. In particular, the claims against the Hospital -- which do not allege “medical malpractice by a health care provider. . .in failing to comply with the applicable standard of care,” but rather, allege respondeat superior and common law corporate negligence -- fall outside the requirements of Rule 9(j) of the North Carolina Rules of Civil Procedure and, as such, compliance with Rule 9(j) with respect to these claims is not required.

In its answer, defendant sought dismissal because plaintiff failed to comply with Rule 9(j) as to its claims of corporate negligence. The trial court allowed the motion and dismissed the corporate negligence claim against defendant hospital. The trial court certified its order as a final judgment pursuant to G.S. § 1A-1, Rule 54(b). Plaintiff appeals.

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Click the case caption above for the full text of the Court's opinion.

Outcome: Reversed.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None