                                  NO. COA14-695
                    NORTH CAROLINA COURT OF APPEALS
                          Filed:    31 December 2014
BETTY D. WRIGHT,
     Plaintiff

                                                     Vance County
    v.
                                                     No. 13 CVS 782

WAKEMED also known as WAKE COUNTY
HOSPITAL SYSTEM, INC., GURVINDER SINGH
DEOL, M.D., and JULIAN SMITH, PA-C,
     Defendants


    Appeal by plaintiff from order entered 12 March 2014 by

Judge Beecher R. Gray in Vance County Superior Court.                    Heard in

the Court of Appeals 19 November 2014.


    Rogers and      Rogers       Lawyers,    by   Michael    F.    Rogers,    for
    Plaintiff.

    Yates, McLamb & Weyher, L.L.P., by Dan J. McLamb, Crystal
    B. Mezzullo, and Andrew C. Buckner, for Defendants.


    ERVIN, Judge.


    Plaintiff Betty D. Wright appeals from an order granting

Defendants’ motion to dismiss Plaintiff’s complaint.                     [R51-53]

On appeal, Plaintiff contends that the trial court erred by

allowing    Defendants’    dismissal        motion    on   the    grounds    that

Plaintiff’s complaint was not certified as required by N.C. Gen.

Stat. § 1A-1, Rule 9(j) despite the fact that Plaintiff had

attempted    to   assert     a    medical     malpractice        claim    against
                                    -2-
Defendants.      After    careful     consideration     of   Plaintiff’s

challenge to the trial court’s order in light of the record and

the applicable law, we conclude that the trial court’s order

should be affirmed.

                         I. Factual Background

    On 21 September 2010, Plaintiff was admitted to WakeMed

hospital for spinal surgery.      Following the procedure, Plaintiff

was discharged by WakeMed’s Surgical and Recovery ACUTE unit and

transferred to the WakeMed REHAB unit on 28 September 2010.

    At the time of the transfer, Plaintiff was provided with a

document   entitled   “WakeMed   REHAB    Admission   Orders;   Admission

Medication Orders,” which contained a list of medications that

had been prescribed for Plaintiff, including prescription and

general medications that had not been included in a previous

medication list prepared by WakeMed ACUTE for Plaintiff.            More

specifically, Defendants negligently directed that Xanax, Geodon

and Lithium be included in the “Admission Medication Orders,”

resulting in the ingestion of these medications and an episode

of somnolence and lethargy from which Plaintiff suffered for

several days.

    On 8 August 2013, Plaintiff filed a complaint seeking the

recovery of damages for personal injury from Defendants in which

Plaintiff alleged that she was entitled to prevail on a res ipsa
                                             -3-
loquitur theory.         On 16 October 2013, Defendants filed an answer

in    which    they     denied    the       material       allegations     set    out    in

Plaintiff’s complaint and sought to have Plaintiff’s complaint

dismissed on a number of grounds, including a failure to state a

claim upon which relief could be granted.                       After a hearing held

on 3 March 2014 for the purpose of considering the issues raised

by    Defendants’      dismissal       motion,       the   trial   court    entered      an

order      dismissing       Plaintiff’s      complaint.          Plaintiff       noted    an

appeal to this Court from the trial court’s order.

                                 II. Legal Analysis

       In her sole challenge to the trial court’s order, Plaintiff

contends      that    the    trial     court    erred      by   granting    Defendant’s

dismissal motion.            More specifically, Plaintiff contends that

the   trial    court     erred    by    failing       to   determine     that     she    had

properly alleged that she was entitled to relief on res ipsa

loquitur      grounds.1          We    do      not    find      Plaintiff’s      argument

persuasive.

                               A. Standard of Review

       When ruling on a motion to dismiss pursuant to N.C. Gen.

Stat. § 1A-1, Rule 12(b)(6), the trial court is required to
       1
      Although Plaintiff seems to suggest that she stated a claim
for relief on “general negligence” as well as res ipsa loquitur
grounds, she has not advanced any “general negligence” argument
in her brief. As a result, our decision in this case will focus
solely on whether Plaintiff’s complaint stated a valid res ipsa
loquitur claim.
                                      -4-
determine “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.”            Harris v.

NCNB Nat’l Bank of N.C., 85 N.C. App. 669, 670, 355 S.E.2d 838,

840 (1987).      In the course of analyzing the sufficiency of the

plaintiff’s pleading, the complaint must be liberally construed

and “should not be dismissed for failure to state a claim unless

it appears beyond doubt that [the] plaintiff could prove no set

of facts in support of his claim which would entitle him to

relief.”      Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d

757, 758 (1987).      “On appeal of a [] motion to dismiss [lodged

pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)], 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.”            Burgin v. Owen,

181 N.C. App. 511, 512, 640 S.E.2d 427, 429 (internal quotation

marks   and    citation   omitted),   disc.   review   denied   and   appeal

dismissed, 361 N.C. 425, 647 S.E.2d 98, cert. denied, 361 N.C.

690, 652 S.E.2d 257 (2007).

                     B. Applicable Legal Principles

    N.C. Gen. Stat. § 1A-1, Rule 9(j) provides, in pertinent

part, that:

              Any complaint alleging medical malpractice
              by a health care provider pursuant to [N.C.
                                       -5-
            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 reviewed by a
            person who is reasonably expected to qualify
            as an expert witness under [N.C. Gen. Stat.
            § 8C-1,] Rule 702 [] and who is willing to
            testify that the medical care did not comply
            with the applicable standard of care; [or]

                                      . . . .

            (3) The pleading alleges facts establishing
            negligence under the existing common law
            doctrine of res ipsa loquitur.

As   a   result,       given   that     Plaintiff’s       complaint        lacks    a

certification in the form required by N.C. Gen. Stat. § 1A-1,

Rule 9(j), the trial court correctly dismissed that pleading

unless   Plaintiff      successfully       asserted   a   claim   based     on     the

doctrine of res ipsa loquitur.

     “Res ipsa loquitur (the thing speaks for itself) simply

means    that    the   facts   of    the    occurrence     itself    warrant       an

inference   of    defendant’s       negligence,   i.e.,    that     they    furnish

circumstantial evidence of negligence where direct evidence of

it may be lacking.”            Sharp v. Wyse, 317 N.C. 694, 697, 346

S.E.2d 485, 487 (1986) (quotation marks, citation, and emphasis

omitted).       “The doctrine of res ipsa loquitur applies when (1)
                                  -6-
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.”   Alston v. Granville Health System, __ N.C. App. __,

__, 727 S.E.2d 877, 879 (internal quotation marks and citation

omitted), disc. review dismissed, 366 N.C. 247, 731 S.E.2d 421

(2012).   Thus, in order to successfully assert a claim based on

the doctrine of res ipsa loquitur, a “plaintiff must [be] able

to show – without the assistance of expert testimony – that the

injury was of a type not typically occurring in the absence of

some negligence by defendant.”      Diehl v. Koffer, 140 N.C. App.

375, 378, 536 S.E.2d 359, 362 (2000) (emphasis omitted).          As a

result of the fact that the doctrine of res ipsa loquitur only

applies in the absence of direct proof of the cause of the

plaintiff’s injury, a plaintiff is not entitled to rely on it in

the event that there is direct evidence of the reason that the

plaintiff sustained the injury for which he or she seeks relief.

Robinson v. Duke University Health Systems, Inc., __ N.C. App.

__, __, 747 S.E.2d 321, 330 (2013), disc. review denied, __ N.C.

__, 755 S.E.2d 618 (2014).

    In order for the doctrine of res ipsa loquitur “to apply in

a medical malpractice claim, a plaintiff must allege facts from
                                    -7-
which a layperson could infer negligence by the defendant based

on common knowledge and ordinary human experience.”                   Smith v.

Axelbank, __ N.C. App. __, __, 730 S.E.2d 840, 843 (2012).                  “Our

Courts    have    consistently   found    that   res     ipsa    loquitur    is

inappropriate in the usual medical malpractice case, where the

question of injury and the facts in evidence are peculiarly in

the province of expert opinion.”          Robinson, __ N.C. App. at __,

747   S.E.2d     at   329   (internal    quotation     marks    and   citation

omitted).   Nevertheless,

            where proper inferences may be drawn by
            ordinary men from approved facts which give
            rise to res ipsa loquitur without infringing
            this   principle,   there   should   be   no
            reasonable argument against the availability
            of the doctrine in medical and surgical
            cases involving negligence, just as in other
            negligence cases, where the thing which
            caused the injury does not happen in the
            ordinary course of things, where proper care
            is exercised.

Mitchell v. Saunders, 219 N.C. 178, 182, 13 S.E.2d 242, 245

(1941).

                  C. Validity of Trial Court’s Ruling

      In granting Defendants’ dismissal motion, the trial court

stated that:

            6.   Under North Carolina law, the doctrine
            Res Ipsa Loquitur is limited to situations
            in which the plaintiff can show--without the
            assistance of expert medical testimony--that
            the plaintiff’s injury was a result of a
            negligent act by the defendant(s) and that
                                            -8-
               the injury would not have occurred in the
               absence of negligence or dereliction of a
               relevant   duty   on  the   part    of    the
               defendant(s).   Res Ipsa Loquitur is not
               appropriate when the question of injury is
               peculiarly   in  the  province   of    expert
               opinion.

               7.   The     allegations     in     plaintiff’s
               Complaint involve purported negligence in
               medication    reconciliation    and    in   the
               administration of certain medications which
               the Complaint alleges caused the plaintiff
               to    become    somnolent     and    lethargic.
               Purported negligence as to these issues
               cannot be inferred absent expert testimony
               and, as such, the doctrine of res ipsa
               loquitur does not apply under North Carolina
               law.

Plaintiff’s contention that she has stated a claim for relief on

the    basis    of     the    doctrine      of    res    ipsa    loquitur      fails    for

multiple reasons.

       In her complaint, Plaintiff has alleged that the injuries

for which she seeks redress were sustained as the result of an

explicitly      delineated         series    of    events.        More   specifically,

Plaintiff       has    alleged      that    her    injuries       resulted      from    the

ingestion      of     specific     medications          that    she   should    not    have

received and that her ingestion of these medications resulted

from the fact that medications that she had not been prescribed

were included on the materials that accompanied her transfer

from   WakeMed        ACUTE   to    WakedMed      REHAB.         In   support    of    this

assertion, Plaintiff produced a list of the medications that
                                                -9-
were originally prescribed for her and “Admission Medications

Orders”      signed     by    Dr.    Deol       showing    that       Xanax,     Geodon,      and

Lithium had been added to the list of medications that she had

originally been instructed to take at or about the time of her

transfer.       As a result, Plaintiff has explicitly alleged that

she    was    injured    in     a   specific          manner    by    a    specific     act    of

negligence, a fact that bars her from any attempt to rely on the

doctrine of res ipsa loquitur.

       In seeking to          persuade us to reach a different result,

Plaintiff contends that she had not alleged the existence of

direct       proof     concerning         the    manner        in    which      her    injuries

occurred       given     that       the    drugs       that     she       claims      had   been

erroneously administered to her had metabolized and had left her

body by the time of her discharge, thereby depriving her of

scientific evidence of their presence in her body.                                    We do not

believe that this fact has any bearing on our analysis given

that    the    issue     raised      by     Plaintiff’s         claim      is    not    whether

Plaintiff      actually       ingested      the       medications         in    question,     but

rather how Plaintiff came to have ingested the medications and

what impact their ingestion had on her.                               As we have already

noted, Plaintiff alleged that a specific error that occurred

during the transfer process resulted in the administration of

these    medications         to     her.         Thus,    the       absence      of    chemical
                                          -10-
evidence that Plaintiff ingested the medications upon which her

claim rests does not suffice to establish that Plaintiff is

entitled to rely on the doctrine of res ipsa loquitur.

       In addition, we do not believe that Plaintiff is entitled

to rely on the doctrine of res ipsa loquitur in this case given

that expert testimony would be necessary to establish the cause

of    the   injury    that     Plaintiff       claims         to    have       suffered.      In

Axelbank, the plaintiff alleged that she had been injured as the

result of the fact that the defendant negligently prescribed a

particular medication for her and asserted that the existence of

negligence on the part of the defendant could be established

without the benefit of expert testimony, so that the plaintiff

was    entitled       to    proceed     on     a        res   ipsa           loquitur   theory.

Axelbank, __ N.C. App. at __, 730 S.E.2d at 843.                                 In rejecting

the    plaintiff’s         argument,    this       Court      concluded          that   “a   lay

person would not be able to determine that plaintiff’s injury

was caused by Seroquel or be able to determine that Dr. Axelbank

was negligent in prescribing the medication to plaintiff without

the benefit of expert witness testimony.”                          Id.       In this case, as

in    Axelbank,   a    jury     would    not       be    able      to    determine      whether

Plaintiff’s injury resulted from the ingestion of Xanax, Geodon,

and    Lithium    without       having       the        benefit         of     expert   witness

testimony, since a lay juror would not necessarily know what
                                           -11-
these medications are, how they affect the human body, and how

they might be expected to affect Plaintiff specifically.

      In Plaintiff’s view, Axelbank has no bearing on the proper

resolution of this case since Axelbank involved a situation in

which the defendant allegedly prescribed the wrong medication

while this case involves a situation in which errors were made

in   transferring       a    list    of    medications   from    one   document   to

another.        According to Plaintiff, one need not be a medical

expert     to    know       that    the    medication    list    was   erroneously

transferred      and    that       this   error   constituted    negligence.      In

making this argument, however, Plaintiff appears to confuse the

meaning of “negligence” as used in the legal context with the

meaning of the same word as used in common parlance.                        Although

the inaccurate copying of a medication list might be understood

as a negligent act, that fact, standing alone, does not suffice

to establish a valid negligence-based claim for the recovery of

damages, which also requires proof that the negligent act on

which the plaintiff’s claim rests resulted in the injury for

which the plaintiff seeks redress.                  Gibson v. Ussery, 196 N.C.

App. 140, 143, 675 S.E.2d 666, 668 (2009).                   Assuming, without in

any way deciding, that Plaintiff can establish a deviation from

the applicable standard of care by showing the existence of the

copying     error       upon       which    she    relies,      Plaintiff     cannot
                                          -12-
demonstrate that the injuries of which she complains resulted

from       this    specific   negligent     act   in   the   absence    of    expert

testimony.2         Simply put, since “the average juror [is] unfit to

determine whether [P]laintiff’s [somnolence and lethargy] would

rarely occur in the absence of” the ingestion of Xanax, Geodon,

and Lithium, Schaffner v. Cumberland County Hosp. System, Inc.,

77 N.C. App. 689, 692, 336 S.E.2d 116, 118 (1985), disc. reviews

denied,      316    N.C.   195,   341   S.E.2d    578-79     (1986),   Plaintiff’s

attempt       to    distinguish     our    decision     in    Axelbank       is   not

persuasive.          As a result, since Plaintiff has not established

that she successfully pled a claim against Defendants on the

basis of the doctrine of res ipsa loquitur, the trial court

correctly dismissed her complaint.

                                  III. Conclusion

       Thus, for the reasons set forth above, we conclude that

none of Plaintiff’s challenges to the trial court’s order have



       2
      In addition, we note that, even if a lay person could be
expected to understand the effect that the specific medications
that Plaintiff claims to have negligently ingested would have on
the human body, a successful plaintiff would still be required
to obtain expert proof that her injuries resulted from the
ingestion   of  these   specific  medications   given  that  the
“Admission Medication Orders” indicate that over a dozen
medications had been prescribed for Plaintiff and that expert
medical testimony would be necessary to explain the interactions
among this collection of medications and whether the injuries
that Plaintiff claims to have sustained could have resulted from
the ingestion of one or more of these other medications.
                             -13-
merit.   As a result, the trial court’s order should be, and

hereby is, affirmed.

    AFFIRMED.

    Judges ELMORE and DAVIS concur.
