                           NO. COA14-612

                  NORTH CAROLINA COURT OF APPEALS

                      Filed: 2 December 2014


CLIFFORD ROBERTS WHEELESS, III,
M.D.,
     Plaintiff,

    v.                               Vance County
                                     No. 13 CVS 335
MARIA PARHAM MEDICAL CENTER, INC.,

HENDERSON/VANCE HEALTHCARE 1, INC.
f/k/a MARIA PARHAM ANESTHESIA AND
PHYSIATRY, INC. d/b/a NORTHERN
CAROLINA SURGICAL ASSOCIATES,

CYNTHIA ROBINSON, M.D.,
INDIVIDUALLY AND AS AN EMPLOYEE
AND/OR AGENT OF HENDERSON/VANCE
HEALTHCARE I, INC., AND/OR MARIA
PARHAM MEDICAL CENTER, INC.,

JOSEPH MULCAHY, M.D., INDIVIDUALLY
AND AS AN EMPLOYEE AND/OR AGENT OF
HENDERSON/VANCE HEALTHCARE I,
INC., AND/OR MARIA PARHAM MEDICAL
CENTER, INC.,

ROBERT NOEL, JR., M.D.,
INDIVIDUALLY AND AS AN EMPLOYEE
AND/OR AGENT OF HENDERSON/VANCE
HEALTHCARE I, INC., AND/OR MARIA
PARHAM MEDICAL CENTER, INC.,

ROBERT SINGLETARY, INDIVIDUALLY
AND/OR CEO AND EMPLOYEE AND/OR
AGENT OF HENDERSON/VANCE
HEALTHCARE I, INC., AND/OR MARIA
PARHAM MEDICAL CENTER, INC.,

JOHN/JANE/IT DOE 1 THROUGH 5,
INDIVIDUALLY AND AS AN EMPLOYEE
                                       -2-
AND/OR AGENT OF HENDERSON/VANCE
HEALTHCARE I, INC., AND/OR MARIA
PARHAM MEDICAL CENTER, INC.,
     Defendants.


       Appeal by plaintiff from orders entered 25 November 2013 by

Judge Robert H. Hobgood in Vance County Superior Court.               Heard

in the Court of Appeals 22 October 2014.


       The Law Office of Colon & Associates, PLLC, by Arlene L.
       Velasquez-Colon, and Congdon Law, by Jeannette Griffith
       Congdon, for plaintiff-appellant.

       Womble Carlyle Sandridge & Rice, LLP, by James M. Powell
       and Theresa M. Sprain, for defendant-appellees Maria Parham
       Medical Center, Inc., Henderson/Vance Healthcare I, Inc.
       f/k/a Maria Parham Anesthesia and Physiatry, Inc. d/b/a
       Northern Carolina Surgical Associates, Maria Parham Medical
       Center, Inc., and Robert Singletary.

       Yates, McLamb & Weyher, L.L.P., by Dan J. McLamb, Samuel G.
       Thompson, Jr., and John B. Ward, for defendant-appellees
       Cynthia Robinson, M.D., Joseph Mulcahy, M.D., and Robert
       Noel, Jr., M.D.


       BRYANT, Judge.


       Since defendants       are health care professionals rendering

professional services, they are not subject to liability for

unfair and deceptive trade practices.            Where plaintiff cannot

show    the   existence       of   a    physician-patient    relationship,

plaintiff’s   claim     for   medical   malpractice   must   be   dismissed.

The doctrine of abatement is applicable where two complaints are
                                        -3-
substantially identical as to parties, subject matter, issues

involved, and relief demanded.

       Plaintiff Clifford Roberts Wheeless, III, M.D., is a board-

certified orthopedic surgeon who held active medical privileges

at defendant Maria Parham Medical Center (“MPMC”) from 1998 to

2006. In 2005, MPMC’s medical executive committee conducted a

peer review of plaintiff’s clinical skills.               MPMC then initiated

a new peer review in 2006 regarding allegations that plaintiff

had    violated   MPMC’s     disruptive       physician   policy.            Plaintiff

denied these allegations and requested a fair hearing concerning

the    matter.    Prior    to   the   fair     hearing,   plaintiff          and   MPMC

entered into a mediated settlement agreement in July 2006. This

agreement required MPMC to change plaintiff’s medical privileges

from    active    to   consulting      staff,    to    terminate       all    further

actions    against        plaintiff,     and     to    abide     by      a     strict

confidentiality provision.

       Despite the mediated settlement agreement, in August 2006,

plaintiff alleged that defendant had failed to honor plaintiff’s

consulting    privileges.       Plaintiff      again   alleged     a    failure     by

defendant to acknowledge plaintiff’s consulting privileges in

early 2007.
                                             -4-
    In     2009,       plaintiff     was     notified      by    the     North    Carolina

Medical    Board       about   an   anonymous       complaint        submitted     by    “W.

Blower”     alleging       inappropriate           and    disruptive          behavior    by

plaintiff.       The     anonymous        complaint       included       references       to

incidents       that    were   raised        during      the    2005     and    2006     peer

reviews.       After an investigation by the North Carolina Medical

Board,     the    allegations        in      the   anonymous        complaint      against

plaintiff were dismissed.

    On     25    August    2011,     plaintiff        filed     a   complaint      against

defendants MPMC, MPMC Medical Executive Committee, MPMC Board of

Directors, Robert Singletary as CEO of MPMC, Cynthia Robinson,

M.D.,    and     Whistle   Blower        1   through      10.       In   the    complaint,

plaintiff alleged, inter alia, claims for unfair and deceptive

trade practices, breach of contract, fraud, civil conspiracy,

and intentional and negligent infliction of emotional distress.

On 30 April 2012, plaintiff voluntarily dismissed his claims for

intentional       and    negligent        infliction       of   emotional        distress.

Defendant MPMC filed a motion for summary judgment on 13 June

2012.     By means of an order entered 10 August, the trial court

granted    MPMC’s       motion,     in    part,    with    respect       to    plaintiff’s

claims for, inter alia, unfair and deceptive trade practices,

actual and constructive fraud, breach of contract, invasion of
                                         -5-
privacy,    civil     conspiracy,        and    tortious     interference            with

contractual relations and prospective economic advantage.                             The

remaining claims proceeded to discovery.1

     On 28 June 2013, plaintiff filed a second complaint against

MPMC;    Henderson/Vance      Healthcare       I,   Inc.   f/k/a     Maria      Parham

Anesthesia and Physiatry, Inc. d/b/a Northern Carolina Surgical

Associates;       Cynthia   Robinson,      M.D.,    individually      and       as    an

employee   and/or     agent    of   Henderson/Vance        Healthcare      I,    Inc.,

and/or    MPMC;    Joseph     Mulcahy,    M.D.,     individually      and       as    an

employee   and/or     agent    of   Henderson/Vance        Healthcare      I,    Inc.,

and/or MPMC; Robert Noel, Jr., M.D., individually and as an

employee   and/or     agent    of   Henderson/Vance        Healthcare      I,    Inc.,

and/or   MPMC;     Robert   Singletary,        individually    and    as     CEO     and

employee   and/or     agent    of   Henderson/Vance        Healthcare      I,    Inc.,

and/or MPMC; and John/Jane/It Doe I through 5, individually and

as an employee and/or agent of Henderson/Vance Health I, Inc.,

and/or MPMC (“defendants”).           In the second complaint, plaintiff

1
  Plaintiff and MPMC appealed from separate trial court orders
regarding discovery in this earlier case. The trial court order
compelling MPMC to supplement its responses to discovery was
reversed. A separate order granting MPMC’s motion to compel
production of plaintiff’s medical records was affirmed. See
Wheeless v. Maria Parham Med. Ctr., Inc., No. COA13-1063, 2014
N.C. App. LEXIS 686 (July 1, 2014); Wheeless v. Maria Parham
Med. Ctr., Inc., No. COA13-1475, 2014 N.C. App. LEXIS 772 (July
15, 2014).
                                           -6-
alleged       claims    for     unfair     and        deceptive      trade    practices,

malicious      prosecution,          medical     malpractice,         negligence,      and

negligence      per    se     against    all     defendants.         Plaintiff       sought

compensatory,          punitive,        special,       and    treble       damages      and

attorneys’ fees.

       On     26     July      2013,     defendants          MPMC,     Henderson/Vance

Healthcare I, Inc., and Robert Singletary filed a motion to

dismiss pursuant to Rule 12(b)(6).                      On 26 August, defendants

Cynthia Robinson, M.D., Joseph Mulcahy, M.D., and Robert Noel,

Jr., M.D., filed a motion to dismiss pursuant to Rule 12(b)(6).

By    means    of    orders    entered     on    25    November,     the     trial   court

granted       defendants’       motions         to    dismiss      with      respect     to

plaintiff’s         claims    for    unfair     and    deceptive     trade    practices,

medical malpractice, negligence, and negligence per se.                                 The

trial       court     denied        defendants’       motions      with      respect     to

plaintiff’s claim for malicious prosecution.                      Plaintiff appeals.

                                ________________________

       As an initial matter, we note that plaintiff’s appeal is

interlocutory since plaintiff’s claim from his second complaint

for    malicious       prosecution       remains       pending     before     the    trial

court.
                                          -7-
       In   general,   a   party      cannot    immediately      appeal    from   an

interlocutory order.          Davis v. Davis, 360 N.C. 518, 524, 631

S.E.2d 114, 119 (2006). “The rationale behind [this rule] is

that no final judgment is involved in such a denial and the

movant is not deprived of any substantial right that cannot be

protected     by   a   timely    appeal     from    a    final   judgment    which

resolves    the    controversy       on   its   merits.”    Block   v.    Cnty.   of

Person, 141 N.C. App. 273, 276—77, 540 S.E.2d 415, 418 (2000)

(citation omitted).

       However, an interlocutory order may be reviewed on appeal

“(1) when there has been a final determination as to one or more

of the claims and the trial court certifies that there is no

just reason to delay the appeal, [or] (2) if delaying the appeal

would prejudice a substantial right.”                   Milton v. Thompson, 170

N.C.   App.    176,    178,    611    S.E.2d     474,    476   (2005)     (citation

omitted).

       In its orders granting, in part, defendants’ motions to

dismiss, the trial court noted that:

              Plaintiff’s motion to certify the Court’s
              ruling dismissing Counts I [unfair and
              deceptive trade practices] and III [medical
              malpractice and/or negligence] as a Final
              Judgment   under  Rule   54(b)  is   allowed.
              Dismissal of Counts I and III of the
              Plaintiff’s complaint is a final judgment
              and there is no just reason for delay.
                                       -8-


      Plaintiff’s    claims,       for        unfair     and     deceptive       trade

practices, medical malpractice, negligence, and negligence per

se,   were   dismissed   by   order      of    the   trial     court   pursuant     to

defendants’ motions to dismiss under Rule 12(b)(6).                     As a motion

to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency

of a claim, a finding that the claim was legally insufficient

amounts to a final judgment with respect to that claim. See

Cline v. Teich, 92 N.C. App. 257, 264, 374 S.E.2d 462, 466

(1988) (“[D]ismissal under Rule 12(b)(6) is an adjudication on

the merits[.]”). Further, we note that the trial court certified

the dismissal of this claim as final under Rule 54(b).                             See

Milton, 170 N.C. App. at 178, 611 S.E.2d at 476. Therefore, the

trial court’s order dismissing plaintiff’s claims for unfair and

deceptive trade practices, medical malpractice, negligence, and

negligence per se is immediately appealable.

                         ________________________

      Plaintiff raises two issues on appeal concerning whether

the trial court erred (I) by granting defendants’ motions and

dismissing    plaintiff’s     claim      for    unfair    and    deceptive       trade

practices;     and   (II)     by   granting          defendants’       motions     and

dismissing    plaintiff’s     claims      for    medical       malpractice   and/or

negligence.
                                  -9-
                                     I.

    Plaintiff contends that the trial court erred by granting

defendants’ motions and dismissing plaintiff’s claim for unfair

and deceptive trade practices.     We disagree.

    “On appeal of a 12(b)(6)        motion to dismiss, 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 (2007) (citation and

quotation omitted).

    Plaintiff argues that the trial court erred by granting

defendants’ motions to dismiss plaintiff’s claim for unfair and

deceptive trade practices. Specifically, plaintiff contends that

the trial court erred because the “learned profession” exception

under N.C. Gen. Stat. § 75-1.1 does not apply to defendants in

this matter.

    North    Carolina   General   Statutes,   Chapter    75-1.1,   holds

that:

            (a) Unfair methods of competition in or
            affecting commerce, and unfair or deceptive
            acts or practices in or affecting commerce,
            are declared unlawful.

            (b) For purposes of this section, “commerce”
            includes all business activities, however
            denominated,    but   does    not    include
                                            -10-
            professional services rendered by a member
            of a learned profession.

N.C.G.S. § 75-1.1(a), (b) (2013).                         To determine whether the

“learned profession” exclusion applies, a two-part inquiry must

be   conducted:    “[f]irst,          the    person       or   entity       performing    the

alleged act must be a member of a learned profession. Second,

the conduct in question must be a rendering of professional

services.”     Reid v. Ayers, 138 N.C. App. 261, 266, 531 S.E.2d

231, 235 (2000) (citations omitted).

      Plaintiff         concedes            that       defendants,            as      medical

professionals,       “are         members        of      [a]    learned        profession.”

Plaintiff argues, however, that the learned profession exception

under   N.C.G.S.        §    75-1.1     does       not       apply    here     because,    by

“illegally access[ing], shar[ing], and us[ing] Plaintiff’s peer

review materials and patients’ confidential medical records out

of   malice    and          for   financial           gain     for        illegal    improper

purpose[,]” defendants have not rendered professional services.

      The   improper         conduct    by       defendants          of    which    plaintiff

complains concerns the anonymous complaint sent by “W. Blower”

to the North Carolina Medical Board. This anonymous complaint

contained references to matters addressed by the 2005 and 2006

peer reviews, matters which plaintiff alleges were to be kept

confidential      and       private    as    a     result      of     the    2006    mediated
                                             -11-
settlement agreement between plaintiff and MPMC. Despite this

complaint having been sent anonymously to the North Carolina

Medical Board, plaintiff asserts that all defendants, including

“John/Jane/It Doe 1 Through 5,” were potentially involved with

this anonymous complaint because only these parties had access

to    the    materials          covered    by     the    2006     mediated        settlement

agreement. As such, the conduct of which plaintiff complains

involves      correspondence              sent      by    one         or     more        medical

professionals          (defendants)          to     another       group        of        medical

professionals (the North Carolina Medical Board) concerning the

conduct      of       yet       another    medical        professional            (plaintiff)

committed in a professional setting.

      It is well-settled by our Courts that “a matter affecting

the   professional          services      rendered       by     members      of     a    learned

profession        .   .     .    therefore       falls   within        the    exception         in

N.C.G.S. § 75-1.1(b).”                 Burgess v. Busby, 142 N.C. App. 393,

407, 544 S.E.2d 4, 11—12 (2001) (citations omitted); see also

Gaunt v. Pittaway, 139 N.C. App. 778, 784, 534 S.E.2d 660, 664

(2000) (“[M]edical professionals are expressly excluded from the

scope   of    N.C.G.S.          §   75-1.1(a)     and    thus    it    clearly          does   not

follow that a statement by a medical professional, criminal or

otherwise, is governed by this particular statute.”). Indeed,
                                     -12-
            [o]ur Court has made clear that unfair and
            deceptive    acts   committed    by   medical
            professionals are not included within the
            prohibition of N.C.G.S. § 75-1.1(a). This
            exception for medical professionals has been
            broadly interpreted by this Court, see
            Phillips   v.   A  Triangle   Women's  Health
            Clinic, 155 N.C. App. 372, 377-79, 573
            S.E.2d 600, 604-05 (2002); Burgess, 142 N.C.
            App. 393, 544 S.E.2d 4 (2001); Gaunt, 139
            N.C. App. 778, 534 S.E.2d 660 (2000); Abram
            v. Charter Medical Corp., 100 N.C. App. 718,
            722-23, 398 S.E.2d 331, 334 (1990); Cameron
            v. New Hanover Memorial Hospital, Inc., 58
            N.C. App. 414, 447, 293 S.E.2d 901, 921
            (1982), and includes hospitals under the
            definition of “medical professionals.”

Shelton v. Duke Univ. Health Sys., Inc., 179 N.C. App. 120, 126,

633 S.E.2d 113, 117 (2006) (citation omitted) (affirming the

trial court’s dismissal of the plaintiff’s claim for unfair and

deceptive    trade    practices    against   the    defendant    hospital   on

grounds that such a claim cannot be brought against medical

professionals pursuant to N.C.G.S. § 75-1.1).                In this case,

defendants’ alleged conduct in making a complaint to the Medical

Board is integral to their role in ensuring the provision of

adequate    medical   care.       Accordingly,     plaintiff’s   argument   is

without merit.

                                      II.
                                   -13-
    Next,     plaintiff   argues   that    the   trial   court   erred    by

granting defendants’ motions        and   dismissing plaintiff’s claim

for medical malpractice and/or negligence. We disagree.

                 The standard of review of an order
            granting a 12(b)(6) motion is whether the
            complaint states a claim for which relief
            can be granted under some legal theory when
            the complaint is liberally construed and all
            the allegations included therein are taken
            as true. On a motion to dismiss, the
            complaint's material factual allegations are
            taken as true. Dismissal is proper when one
            of   the   following  three   conditions  is
            satisfied: (1) the complaint on its face
            reveals that no law supports the plaintiff's
            claim; (2) the complaint on its face reveals
            the absence of facts sufficient to make a
            good claim; or (3) the complaint discloses
            some fact that necessarily defeats the
            plaintiff's claim.

Burgin, 181 N.C. App. at 512, 640 S.E.2d at 428—29 (citations

and quotation omitted).

    Plaintiff contends that the trial court erred by granting

defendants’    motions    to   dismiss    plaintiff’s    third   claim   for

medical malpractice, negligence, and negligence per se. In his

second complaint, plaintiff also raised a claim for relief based

on res ipsa loquitur; plaintiff further orally asserted a claim

for relief based on corporate negligence before the trial court.

A. Medical Malpractice
                                 -14-
    In his complaint, plaintiff alleged that defendants engaged

in medical malpractice pursuant to N.C. Gen. Stat. § 90-21.11.

North Carolina General Statutes, Chapter 90-21.11, holds that a

medical   malpractice   claim   may   be   brought   in   the   following

instances:

           a. 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.

           b.   A civil action against 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 for damages for personal injury or
           death, when the civil action (i) alleges a
           breach of administrative or corporate duties
           to the patient, including, but not limited
           to, allegations of negligent credentialing
           or negligent monitoring and supervision and
           (ii)   arises   from   the   same   facts   or
           circumstances   as   a    claim   under   sub-
           subdivision a. of this subdivision.

N.C. Gen. Stat. § 90-21.11(2) (2013).

    Plaintiff contends that his claim for medical malpractice

has satisfied the pleading requirements of N.C.G.S. § 90-21.11

because defendants are medical providers and a medical provider—

patient relationship is not required to assert such a claim.

Plaintiff cites Jones v. Asheville Radiological Grp., P.A., 129

N.C. App. 449, 500 S.E.2d 740 (1998), rev’d in part on other
                                          -15-
grounds by 351 N.C. 348, 524 S.E.2d 804 (2000), in support of

his argument.

     In Jones, the plaintiff sued her defendant physician and

medical provider, alleging that the defendants had disclosed her

medical records without her authorization.                             Id. at 453, 500

S.E.2d at 742.        The trial court granted the defendants’ motion

to dismiss on the grounds that the unauthorized disclosure of

medical     records   did     not   give        rise    to   a    claim     for   medical

malpractice.       Id.   at    455,       500    S.E.2d      at   744.         This   Court

disagreed,     stating      that    “in    the     context        of    a   health     care

provider's unauthorized disclosure of a patient's confidences,

claims of medical malpractice, invasion of privacy, breach of

implied contract and breach of fiduciary duty/confidentiality

should all be treated as claims for medical malpractice.” Id. at

456, 500 S.E.2d at 744 (citation omitted). The trial court’s

dismissal of the plaintiff’s claim was then affirmed, however,

on the grounds that the plaintiff had failed to comply with the

statute of limitations in filing her complaint. Id. at 456—57,

500 S.E.2d at 744—45.

     Jones    is   not   applicable         to    the    instant        case    since,   in

Jones, the plaintiff was a patient of the defendants and, thus,

a   clear    physician/medical        provider          to    patient       relationship
                                       -16-
existed    between     the    plaintiff    and        the    defendants.             Here,

plaintiff was not a patient of defendants, but rather a fellow

medical    professional      and   associate       of       MPMC.    “[I]t      is    well

settled that the relationship of health-care provider to patient

must be established to maintain an actionable claim for medical

malpractice.”    Massengill v. Duke Univ. Med. Ctr., 133 N.C. App.

336, 338, 515 S.E.2d 70, 72 (1999) (citing Easter v. Lexington

Mem’l Hosp., Inc., 303 N.C. 303, 305—06, 278 S.E.2d 253, 255

(1981) (“It is well settled that the relationship of physician

to   patient    must    be    established        as     a    prerequisite        to    an

actionable claim for medical malpractice.”) (citation omitted)).

Therefore, the trial court did not err by granting defendants’

motions to dismiss with respect to plaintiff’s claim for medical

malpractice.

B. Negligence, Negligence per se, Corporate Negligence, Res Ipsa

Loquitur

     Plaintiff       also    brought     written       claims       for   negligence,

negligence     per    se,    and   res    ipsa        loquitur      in    his    second

complaint, and orally attempted to assert a claim of corporate

negligence before the trial court. Plaintiff alleges that these

negligence claims arose from defendants’ failure to “exercise

reasonable care and due diligence in safeguarding the medical
                                          -17-
records    generated       by   Plaintiff,       and     Plaintiff’s           peer     review

materials stored under the exclusive care, custody and control

of MPMC[.]”         In its order dismissing these claims, the trial

court noted that “The motion to dismiss Plaintiff’s claim for

medical malpractice and/or negligence (Count III) is allowed.

The Court’s decision to dismiss Count III is not based on Rule

9(j) of the Rules of Civil Procedure.”

      In his second complaint, plaintiff alleged that defendants

are medical providers and staff for whom plaintiff generated

confidential       patient      medical   records.        Plaintiff           also     alleged

that,     because       defendants      engaged     in       two       peer        reviews    of

plaintiff,     defendants        owed     plaintiff          a     duty       to     “properly

safeguard[]       and   protect[]”      records     relating           to    these     reviews

which were “stored under the exclusive care, custody and control

of MPMC[.]”         Plaintiff further alleged that,                         in addition to

defendants     “fail[ing]        to    exercise        reasonable           care      and     due

diligence    in     safeguarding       [the]     medical         records      generated        by

Plaintiff, and Plaintiff’s peer review materials,” defendants

are   liable   under      the    doctrine      of   res      ispa      loquitur        because

defendants’       “failure      to     safeguard       Plaintiff’s            private        and

confidential       materials      is    evidenced       by       the    fact        that     said

Defendant[s] had exclusive possession, custody and control of
                                 -18-
said materials, which would not have been disclosed, but for

[defendants’] negligence.”

    As a result, plaintiff has alleged that he is entitled to

recover   damages   from   defendants   based   upon   his   claims   for

negligence against defendants, including actions for negligence,

negligence per se, corporate negligence, and res ipsa loquitur.

However, these claims have been abated.

                 Under the law of this state, where a
           prior action is pending between the same
           parties for the same subject matter in a
           court     within    the    state   having    like
           jurisdiction, the prior action serves to
           abate the subsequent action. The prior
           pending action doctrine involves essentially
           the same questions as the outmoded plea of
           abatement,     and    is,    obviously    enough,
           intended to prevent the maintenance of a
           subsequent      action     [that]    is    wholly
           unnecessary and, for that reason, furthers
           the    interest   of    judicial   economy.   The
           ordinary test for determining whether or not
           the parties and causes are the same for the
           purpose of abatement by reason of the
           pendency of the prior action is this: Do the
           two actions present a substantial identity
           as   to    parties,    subject   matter,   issues
           involved, and relief demanded?

Jessee v. Jessee, 212 N.C. App. 426, 439, 713 S.E.2d 28, 37

(2011) (citations and quotations omitted).

    A review of plaintiff’s two lawsuits indicates that there

exists significant overlap between the parties, subject matter,

issues, and relief demanded. Specifically, each lawsuit concerns
                                      -19-
a    core   group   of   defendants      (MPMC,   Cynthia        Robinson,      Robert

Singletary, and Whistle Blower 1 Through 10/ Doe 1 Through 5),

and    identical     subject    matter     and    issues     (that       defendants’

failure to safeguard medical records generated by plaintiff and

peer review records concerning plaintiff has harmed plaintiff).

As plaintiff’s two lawsuits “present a substantial identity as

to    parties,      subject    matter,     issues    involved,        and       relief

demanded[,]”     plaintiff’s     second    complaint       has    been    abated    by

plaintiff’s      first   complaint.      See   id.   Accordingly,         the    trial

court did not err in granting defendants’ motions to dismiss.

       Affirmed.

       Judges ELMORE and ERVIN concur.
