ROBERT N. HUNTER, Jr., Judge.
Marjorie C. Locklear ("Plaintiff") appeals from an order dismissing her complaint against Defendants Dr. Matthew Cummings, Duke University Health System, and Duke University Affiliated Physicians (collectively "Duke Defendants") under Rule 9(j), as well as the denial of her motion to amend under Rule 15(a). Plaintiff also appeals from an order dismissing her complaint against Defendant Southeastern Regional Medical Center ("Southeastern") under Rules 9(j) and 12(b)(5), as well as the denial of her motion to amend under Rule 15(a). After review, we reverse in part and affirm in part.
I. Factual and Procedural Background
On 30 July 2015, one day before the statute of limitations expired, Plaintiff filed a complaint against Defendants, seeking monetary damages for medical negligence. The complaint alleges the following narrative.
On 31 July 2012, Dr. Cummings performed cardiovascular surgery on Plaintiff. During surgery, Dr. Cummings failed to monitor and control Plaintiff's body and was distracted. Additionally, he did not position himself in close proximity to Plaintiff's body. While Plaintiff "was opened up and had surgical tools in her[,]" Plaintiff fell off of the surgical table. Plaintiff's head and the front of her body hit the floor. As a result of the fall, Plaintiff suffered a concussion, developed double vision, injured her jaw, displayed bruises, and was "battered" down the left side of her body. Plaintiff also had "repeated" nightmares about falling off the surgical table. Duke Defendants and Defendant Southeastern acted negligently by retaining physicians, nurses, and other healthcare providers who allowed Plaintiff's accident to occur.
On 9 September 2015, private process server, Richard Layton, served Duke Defendants by delivering Plaintiff's civil cover sheet, summons, and complaint to Margaret Hoover, a registered agent for Duke Defendants. On 19 September 2015, Gary Smith, Jr. served Plaintiff's summons and complaint on Dr. Cummings. Lastly, on 24 September 2015, Smith served Plaintiff's summons and complaint on Southeastern by delivering the papers to C. Thomas Johnson, IV, Southeastern's Chief Financial Officer.
On 10 November 2015, Dr. Cummings and Duke Defendants filed a joint answer and motion to dismiss. Dr. Cummings and Duke Defendants denied the allegations in Plaintiff's complaint and asserted defenses under Rules 12(b)(6) and 9(j) of the North Carolina Rules of Civil Procedure.
On 23 November 2015, Southeastern filed an answer and denied Plaintiff's allegations. Southeastern moved to dismiss Plaintiff's compliant under Rules 12(b)(4), 12(b)(5), 12(b)(6), and 9(j) of the North Carolina Rules of Civil Procedure. On 29 December 2015, Johnson filed an affidavit. In the affidavit, Johnson swore he was the Chief Financial Officer of Southeastern, but not the corporation's registered agent.
On 11 January 2016, the trial court held a hearing on all the Defendants' pending motions. During argument, Plaintiff requested "leave of the Court to amend [the] complaint so that there's no controversy hereafter." Plaintiff moved under Rule 60, not Rule 15(a), because "Rule 60 . . . allows a mere clerical order — error to be corrected." Then, Plaintiff requested leave "pursuant to Rules 15(a) and 60."
On 2 February 2016, the trial court granted Dr. Cummings's and Duke Defendants' motion to dismiss pursuant to Rule 9(j) and denied Plaintiff's motion to amend under Rule 15(a). On 4 February 2016, the trial court granted Southeastern's motion to dismiss pursuant to Rules 9(j) and 12(b)(5) and denied Plaintiff's motion to amend under Rule 15(a). Plaintiff filed timely notice of appeal.
II. Standard of Review
The standard of review of a Rule 12(b)(6) motion to dismiss is de novo. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4 (2003). Likewise, a trial court's order dismissing a complaint pursuant to Rule 9(j) is reviewed de novo on appeal because it is a question of law. Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 256, 677 S.E.2d 465, 477 (2009) (citation omitted).
We review the trial court's dismissal under Rule 12(b)(5) de novo. New Hanover Cty. Child Support Enforcement ex rel. Beatty v. Greenfield, 219 N.C. App. 531, 533, 723 S.E.2d 790, 792 (2012) (citation omitted).
A. Motions to Dismiss under Rule 12(b)(6) and Rule 9(j)
Plaintiff argues the trial court erred in dismissing her complaint against all the Defendants under Rule 12(b)(6) and Rule 9(j). Because Plaintiff's claims sound in ordinary negligence, not medical malpractice, we agree.
"In North Carolina, the distinction between a claim of medical malpractice and ordinary negligence is significant for several reasons, including that medical malpractice actions cannot be brought [without Rule 9(j) compliance]." Gause v. New Hanover Reg'l Med. Ctr., ___ N.C. App. ___, ___, 795 S.E.2d 411, ___ (2016) (citing N.C. Gen. Stat. § 1A-1, Rule 9(j) (2015)).
"Whether an action is treated as a medical malpractice action or as a common law negligence action is determined by our statutes[.]" Smith v. Serro, 185 N.C. App. 524, 529, 648 S.E.2d 566, 569 (2007). N.C. Gen. Stat. § 90-21.11(2)(a) defines a medical 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 . . . health care by a health care provider." N.C. Gen. Stat. § 90-21.11(2)(a). "The term `professional services' is not defined by our statutes but has been defined by the Court 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, ___ N.C. App. at ___, 795 S.E.2d at ___ (quoting Sturgill v. Ashe Mem'l Hosp., Inc., 186 N.C. App. 624, 628, 652 S.E.2d 302, 305 (2007)). "Our courts have classified as medical malpractice those claims alleging injury resulting from activity that required clinical judgment and intellectual skill." Id. at ___, 795 S.E.2d at ___ (citation omitted). "Our courts have classified as ordinary negligence those claims alleging injury caused by acts and omissions in a medical setting that were primarily manual or physical and which did not involve a medical assessment or clinical judgment." Id. at ___, 795 S.E.2d at ___ (citation omitted).
In cases of a plaintiff falling, the deciding factor is whether the decisions leading up to the fall required clinical judgment and intellectual skill. Where the complaint alleges or discovery shows the fall occurred because medical personnel failed to properly use restraints, the claim sounded in medical malpractice. Sturgill, 186 N.C. App. at 628-30; Alston v. Granville Health Sys., 221 N.C. 416, 421, 727 S.E.2d 877, 881 (2012) ("Alston II"). However, when a complaint alleged the plaintiff fell of a gurney in an operating room while unconscious, this Court held the claim sounded in ordinary negligence, not medical malpractice. Alston v. Granville Health Sys., No. 09-1540, 2010 WL 3633738 (unpublished) (Sept. 21, 2010) ("Alston I").
In her complaint, Plaintiff states, inter alia:
Plaintiff's complaint sounds in ordinary negligence, not medical malpractice. Although Plaintiff uses language which would seemingly trigger a medical malpractice claim, we conclude the facts in Plaintiff's complaint give rise to a claim of ordinary negligence. Plaintiff's factual allegation, namely "Plaintiff was allowed to fall off the operating table while Plaintiff was opened up and had surgical tools in her[,]" forecasts the type of injury resulting from actions not requiring specialized skill or clinical judgment. Gause, ___ N.C. App. at ___, 795 S.E.2d at ___ (citations omitted).
Dr. Cummings and Duke Defendants contend Plaintiff failed to argue her action is not medical malpractice, and, thus, Plaintiff is barred from raising this issue on appeal. Defendants further contend we cannot address this issue on appeal, as it would constitute this Court improperly supplementing an appellant's brief. However, in our de novo review, we cannot review whether the trial court erred in dismissing Plaintiff's complaint under Rule 9(j) without addressing whether Rule 9(j) certification is required.
Notwithstanding Defendants' arguments, we hold this action sounds in ordinary negligence. Therefore, Plaintiff was not required to comply with Rule 9(j). Accordingly, the trial court erred in dismissing Plaintiff's complaint under Rules 12(b)(6) and 9(j).
The concurring and dissenting opinion asserts our majority supplements Plaintiff's arguments on appeal and improperly concludes Plaintiff's claims sound in ordinary negligence. In support of this contention, the concurring and dissenting opinion cites to the legislative intent of Rule 9(j).
At the outset, as stated above, our majority does not improperly supplement Plaintiff's appeal because, in our de novo review, we must decide whether Rule 9(j) certification is required before we can affirm a trial court's dismissal of a complaint for lack of Rule 9(j) compliance.
Next, we note a court's "consideration of a motion brought under Rule 12(b)(6)
is limited to examining the legal sufficiency of the allegations contained within the four corners of the complaint." Hillsboro Partners, LLC v. City of Fayetteville, 226 N.C. App. 30, 32-33, 738 S.E.2d 819, 822 (2013) (citation omitted). See also Jackson/Hill Aviation, Inc. v. Town of Ocean Isle Beach, ___ N.C. App. ___, ___, 796 S.E.2d 120, ___ (2017) (citation omitted). Additionally, "[d]ismissal of an action under Rule 12(b)(6) is appropriate when the complaint `fail[s] to state a claim upon which relief can be granted.'" Arnesen v. Rivers Edge Golf Club & Plantation, Inc., 368 N.C. 440, ___, 781 S.E.2d 1, 7 (2015) (quoting N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2013)) (second alteration in original). "When the complaint on its face reveals that no law supports the claim [or] reveals an absence of facts sufficient to make a valid claim . . . dismissal is proper." Id. at ___, 781 S.E.2d at 8 (citation omitted) (emphasis added). Accordingly, there is no need to delve into the legislative intent behind Rule 9(j). Instead, we look at the four corners of Plaintiff's complaint and acknowledge that Plaintiff revealed facts sufficient to make a valid claim, a claim of ordinary negligence, under our case law. See id. at ___, 781 S.E.2d at 8 (citation omitted).
B. Motion to Dismiss under Rule 12(b)(5)
Plaintiff next contends the trial court erred in dismissing her claims against Southeastern under Rule 12(b)(5). We disagree.
Rule 4 of the North Carolina Rules of Civil Procedure governs service of process in North Carolina. Rule 4 states, inter alia:
N.C. Gen. Stat. § 1A-1, Rule 4 (2016).
Plaintiff argues service by a private process server is permissible under the North Carolina Rules of Civil Procedure if the private process server files an affidavit under N.C. Gen. Stat. § 1-75.10.
Southeastern contends holding Plaintiff's service was proper conflates Rule 4(a) with Rule 4(h) and Rule 4(h1). We agree.
Here, Plaintiff hired a private process server, Smith, to serve Southeastern. On 24 September 2015, Smith served Johnson, the Chief Financial Officer of Southeastern. On 14 October 2015, Smith signed an "Affidavit of Process Server" asserting he was over the age of 18 years, not a party to the action, and "authorized by law to perform said service."
In North Carolina, private process service is not always "authorized under law". The proper person for service in North Carolina is the sheriff of the county where service is to be attempted or some other person duly authorized by law to serve summons. N.C. Gen. Stat. § 1A-1, Rule 4(a). Although Plaintiff's process server filed the statutorily required affidavit, a self-serving affidavit alone does not confer "duly authorized by law" status on the affiant. Legal ability to serve process by private process server is limited by statute in North Carolina to scenarios where the sheriff is unable to fulfill the duties of a process server. N.C. Gen. Stat. § 1A-1, Rule 4(h), (h1). For example, if the office of the sheriff is vacant, the county's coroner may execute service. N.C. Gen. Stat. § 162-5. Additionally, if service is unexecuted by the sheriff under Rule 4(a), the clerk of the issuing court can appoint "some suitable person" to execute service under Rule 4(h). Here, the record does not disclose the sheriff was unable to deliver service so that the services of a process server would be needed. This is commonly accepted statutory practice in North Carolina and discussed in treatises dealing with civil procedure. See William A. Shuford, North Carolina Civil Practice and Procedure § 4.2 (6th ed.); 1 G. Gray Wilson, North Carolina Civil Procedure § 4-4, at 4-16 (2016). Accordingly, we affirm the trial court's order dismissing Plaintiff's claims against Southeastern under Rule 12(b)(5) of the North Carolina Rules of Civil Procedure.
For the foregoing reasons, we reverse the trial court's order dismissing Plaintiff's complaint against Dr. Cummings and Duke Defendants. We affirm the trial court's order dismissing Plaintiff's complaint against Southeastern.
REVERSED IN PART; AFFIRMED IN PART.
Judge CALABRIA concurs.
Judge BERGER concurring in part and dissenting in part.
BERGER, Judge, concurring in part and dissenting in part.
Plaintiff failed to comply with Rule 4 of the North Carolina Rules of Civil Procedure when she failed to serve her summons and complaint on Defendant Southeastern Regional Medical Center ("Southeastern") through a person authorized by law. Therefore, I concur with the majority that the trial court did not err when it granted Southeastern's motion to dismiss pursuant to Rule 12(b)(5) for insufficiency of service of process.
However, Plaintiff pleaded a claim of medical malpractice by a healthcare provider in her complaint, not a claim of ordinary negligence as asserted by the majority. Because this was a medical malpractice claim, Plaintiff did not comply with pleading requirements when she failed to allege that "all medical records pertaining to the alleged negligence . . . have been reviewed" as required by Rule 9(j). Because the amendment of a complaint for medical malpractice to correct a deficient Rule 9(j) certification is improper and does not relate back to the date of filing the complaint, the trial court did not err in denying Plaintiff's motion to amend which was filed after the statute of limitations had expired. In dismissing Plaintiff's complaint, the trial court did not err, as stated in the majority's opinion, and I must respectfully dissent.
On July 30, 2015, Plaintiff filed a complaint for damages and punitive damages in Robeson County Superior Court alleging medical malpractice by Defendants in
2 expert witness . . ., and who is willing to testify that the medical care rendered to Plaintiff fell below the applicable standard of care."
Plaintiff's complaint was a malpractice action, defined as either:
N.C. Gen. Stat. § 90-21.11(2)(a) and (b) (2015).
Plaintiff, throughout her complaint, asserted that Dr. Cummings, Southeastern, Duke University Health System, and Duke University Affiliated Physicians, Inc. had provided professional medical services to Plaintiff. She further alleged that Dr. Cummings, while "acting in the course and scope of his employment," utilized his professional skill and judgment in operating on Plaintiff, and in doing so, failed to position himself to properly control and monitor Plaintiff's body. Plaintiff further asserted that Dr. Cummings failed to properly supervise other health care professionals during the operation.
Plaintiff's complaint alleges that each Defendant violated the standard of care set forth in N.C. Gen. Stat. § 90-21.12. Subparagraph (a) of that statute reads as follows:
N.C. Gen. Stat. § 90-21.12(a) (emphasis added).
Plaintiff's brief acknowledges that her complaint was one for medical malpractice. In her Statement of the Case, Plaintiff states, "Marjorie Locklear ("Plaintiff" or "Locklear") commenced this medical malpractice action on 30 July 2015." (emphasis added). Plaintiff's brief also focuses on Rule 9(j) certification, which is only applicable to medical malpractice claims.
Plaintiff does not argue that this is an action for ordinary negligence as the majority has found; thus, this argument should be deemed abandoned. "`It is not the duty of this Court to supplement an appellant's brief with legal authority or arguments not contained therein. These arguments are deemed abandoned by virtue of [Rule 28(b)(6) of the North Carolina Appellate Procedures].'" Sanchez v. Cobblestone Homeowners Ass'n of Clayton, Inc., ___ N.C. App. ___, ___, 791 S.E.2d 238, 245 (2016) (citation and brackets omitted).
The majority cites to the unpublished opinion Alston, wherein this Court held the decedent's injuries from falling off a gurney in an operating room sounded in ordinary negligence and not medical malpractice. Alston v. Granville Health Sys., 207 N.C. App. 264, 699 S.E.2d 478 (2010), aff'd, 221 N.C. App. 416, 727 S.E.2d 877 (2012) (unpublished). This Court held the "[p]laintiff's sole cause of action [wa]s for ordinary negligence under a theory of res ipsa loquitur," and did not require compliance with Rule 9(j). Id. Further, "[b]ecause [p]laintiff herein elected to proceed solely on a res ipsa loquitur theory, [p]laintiff is bound by that theory." Id.
The transfer of a patient from the operating table to a gurney before or after surgery, as in Alston, is "primarily manual or physical and . . . d[oes] not involve a medical assessment or clinical judgment." Gause v. New Hanover Regional Medical Center, ___ N.C. App. ___, ___, 795 S.E.2d 411, 415 (2016).
Conversely, in the case sub judice, Plaintiff alleged her injuries occurred from falling off of the operating table during the surgery. The positioning and controlling of Plaintiff's body while on the operating table, during active surgery, while Plaintiff's opened body contained surgical tools, required "clinical judgment and intellectual skill." Id. Thus, because Plaintiff's factual allegations sound in medical malpractice, and her complaint specifically alleges medical malpractice, Plaintiff is required to comply with Rule 9(j).
Further, converting Plaintiff's action into one for ordinary negligence would allow her to circumvent the requirement of expert certification for her medical malpractice complaint. The majority's finding that this is an action for ordinary negligence creates a loophole for Plaintiff after she improperly filed her medical malpractice claim. Plaintiff's witnesses for an ordinary negligence claim will still be testifying as to the proper positioning and monitoring of a body during cardiovascular surgery, and the witnesses who will be qualified to testify are the same doctors and nurses who would testify to the proper procedures during a cardiovascular surgery under a medical malpractice lawsuit. The majority's conversion of Plaintiff's medical malpractice action into an ordinary negligence action defeats the legislative intent of Rule 9(j).
Turning to Plaintiff's arguments under Rule 9(j), they fail. In pertinent part, Rule 9(j) states that:
N.C. Gen. Stat. § 1A-1, Rule 9(j) (2015).
Thus, dismissal of a medical malpractice action is required unless the pleading requirements of Rule 9(j) are satisfied. Our Supreme Court held that:
Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002) (emphasis in original) (internal citations and brackets omitted). Here, Plaintiff provided proper certification regarding medical care and treatment, but failed to comply with Rule 9(j) as there was no allegation concerning review of medical records.
On January 11, 2016, Plaintiff in open court moved to amend the complaint pursuant to Rule 15(a) to comply with Rule 9(j). The trial court correctly denied this motion as it was made nearly six months after the statute of limitations had expired.
This Court previously held that "Rule 9(j) must be satisfied at the time of the complaint's filing." Alston v. Hueske, ___ N.C. App. ___, ___, 781 S.E.2d 305, 309 (2016). In Hueske, as here, the plaintiff sought to amend her complaint to comply with the certification requirements of Rule 9(j). This Court noted that
Id., at ___, 781 S.E.2d at 310 (emphasis in original) (internal citations and quotation marks omitted).
Bass v. Durham Cty. Hosp. Corp., 158 N.C. App. 217, 225, 580 S.E.2d 738, 743 (2003) (Tyson, J., dissenting) (internal citations and quotation marks omitted) (emphasis in original), rev'd for the reasons stated in the dissenting opinion, 358 N.C. 144, 592 S.E.2d 687 (2004). See also Thigpen v. Ngo, 355 N.C. 198, 205, 558 S.E.2d 162, 167 (2002) ("[W]e hold 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."); Fintchre v. Duke University, ___ N.C. App. ___, ___, 773 S.E.2d 318, 325 (2015) ("[W]here plaintiff failed to file a complaint including a valid Rule 9(j) certification within the statute of limitations, granting plaintiff's motion to amend . . . would have been futile. . . .").
Such is the case here. Plaintiff alleged that her care and treatment occurred July 31, 2012, and she filed her action July 30, 2015, one day before the statute of limitations would expire. Plaintiff's medical malpractice complaint failed to include a required Rule 9(j) certification regarding review of medical records.
Plaintiff failed to seek amendment of her complaint until January 11, 2016, nearly six months after the statute of limitations had expired, and 44 days beyond "[t]he 120-day extension of the statute of limitations available to medical malpractice plaintiffs by Rule 9(j) . . . for the purpose of complying with Rule 9(j)." Bass at 225, 580 S.E.2d at 743 (citing N.C. Gen. Stat. § 1A-1, Rule 9(j) (2001)). Allowing an amendment would have been futile, so it cannot be said that the trial court abused its discretion in denying that motion. Plaintiff failed to plead proper Rule 9(j) certification in her complaint before the statute of limitations expiration. If any complaint alleging medical malpractice shall be dismissed for failure to comply with the certification mandate of Rule 9(j), it cannot be said that the trial court erred in granting Defendants' motion to dismiss.