Verdicts

Ordinary Negligence Claimed, Expert Not Required

In an unreported opinion, the Court of Appeals of North Carolina declared that a claim alleging an in-hospital injury should not have been dismissed for failure to state a claim simply because it was not first reviewed by a medical expert, as North Carolina law does not require expert review when the claim alleges ordinary negligence, brought under a theory of res ipsa loquitur. Alston v. Granville Health System, Slip Copy, 2010 WL 3633738 (Table) (N.C.App. 9/21/10).

The patient was injured when she fell off of a hospital gurney while unconscious and awaiting surgery. Her fall caused her to suffer injuries to her arm, leg, back and head. She did not recover from these injuries, and remained bed-ridden until her death more than four years later. The administrator of her estate brought suit against the hospital system and the doctor in charge of the patient alleging that the defendants were liable for negligence in allowing the decedent to fall off the gurney while under defendants' care. The defendants moved to dismiss for failure to state a claim upon which relief could be granted. The trial court granted their motions, finding that the claim was deficient for lack of review by a medical expert.

In North Carolina, expert review of health care-related claims is generally required for a proper pleading. The statute addressing this need, N.C. Gen.Stat. ' 1A-1, Rule 9(j) (2009), states that suits alleging medical malpractice by a health care provider for failing to comply with the applicable standard of care must be dismissed unless, in one of two specified ways, an expert has evaluated the claim and found it worthy. The exception to this rule is stated in the statute's third subsection, which permits a claim for ordinary negligence that takes place in a health care setting to go forward if “[t]he pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.” (The doctrine of res ipsa loquitur applies when: 1) direct proof of the cause of an injury is not available; 2) the instrumentality involved in the accident is 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. Grigg v. Lester, 102 N.C.App. 332 (1991).) Plaintiff argued on appeal that, because the suit was one for ordinary (not medical) negligence, and was being brought under a theory of res ipsa loquitur, failure to obtain an expert opinion was not fatal. The defendants countered that this case was analogous to Sturgill v. Ashe Mem'l Hosp. Inc., 186 N.C.App. 624 (2007), in which this same appellate court upheld dismissal of a suit alleging injuries after a patient's fall from a bed because the complaint failed to comply with Rule 9(j). However, the court here pointed out that in Sturgill, the complainants alleged that the fall was due to the patient being left unrestrained, though he should have been. There was no dispute in the record to the assertion that the decision to restrain a patient is a medical decision that requires a physician or physician assistant's written order. Said the court in the present case, “This case is readily distinguishable from Sturgill. Here, Plaintiff's sole cause of action alleges only ordinary negligence based on the doctrine of res ipsa loquitur, whereas in Sturgill, the plaintiff's sole claim for relief was based on a medical malpractice theory.” Having elected to proceed solely on a claim of ordinary negligence, and having sufficiently pleaded the elements of a res ipsa loquitur claim, it was not necessary for the plaintiff to comply with Rule 9(j)'s expert review requirement. Thus, the pleading was sufficient, and the court reversed the trial court's order of dismissal.

Ordinary Negligence Claimed, Expert Not Required

In an unreported opinion, the Court of Appeals of North Carolina declared that a claim alleging an in-hospital injury should not have been dismissed for failure to state a claim simply because it was not first reviewed by a medical expert, as North Carolina law does not require expert review when the claim alleges ordinary negligence, brought under a theory of res ipsa loquitur. Alston v. Granville Health System, Slip Copy, 2010 WL 3633738 (Table) (N.C.App. 9/21/10).

The patient was injured when she fell off of a hospital gurney while unconscious and awaiting surgery. Her fall caused her to suffer injuries to her arm, leg, back and head. She did not recover from these injuries, and remained bed-ridden until her death more than four years later. The administrator of her estate brought suit against the hospital system and the doctor in charge of the patient alleging that the defendants were liable for negligence in allowing the decedent to fall off the gurney while under defendants' care. The defendants moved to dismiss for failure to state a claim upon which relief could be granted. The trial court granted their motions, finding that the claim was deficient for lack of review by a medical expert.

In North Carolina, expert review of health care-related claims is generally required for a proper pleading. The statute addressing this need, N.C. Gen.Stat. ' 1A-1, Rule 9(j) (2009), states that suits alleging medical malpractice by a health care provider for failing to comply with the applicable standard of care must be dismissed unless, in one of two specified ways, an expert has evaluated the claim and found it worthy. The exception to this rule is stated in the statute's third subsection, which permits a claim for ordinary negligence that takes place in a health care setting to go forward if “[t]he pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.” (The doctrine of res ipsa loquitur applies when: 1) direct proof of the cause of an injury is not available; 2) the instrumentality involved in the accident is 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. Grigg v. Lester , 102 N.C.App. 332 (1991).) Plaintiff argued on appeal that, because the suit was one for ordinary (not medical) negligence, and was being brought under a theory of res ipsa loquitur, failure to obtain an expert opinion was not fatal. The defendants countered that this case was analogous to Sturgill v. Ashe Mem'l Hosp. Inc. , 186 N.C.App. 624 (2007), in which this same appellate court upheld dismissal of a suit alleging injuries after a patient's fall from a bed because the complaint failed to comply with Rule 9(j). However, the court here pointed out that in Sturgill, the complainants alleged that the fall was due to the patient being left unrestrained, though he should have been. There was no dispute in the record to the assertion that the decision to restrain a patient is a medical decision that requires a physician or physician assistant's written order. Said the court in the present case, “This case is readily distinguishable from Sturgill. Here, Plaintiff's sole cause of action alleges only ordinary negligence based on the doctrine of res ipsa loquitur, whereas in Sturgill, the plaintiff's sole claim for relief was based on a medical malpractice theory.” Having elected to proceed solely on a claim of ordinary negligence, and having sufficiently pleaded the elements of a res ipsa loquitur claim, it was not necessary for the plaintiff to comply with Rule 9(j)'s expert review requirement. Thus, the pleading was sufficient, and the court reversed the trial court's order of dismissal.