                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                         No. COA16-595

                                    Filed: 30 December 2016

New Hanover County, No. 15 CVS 3079

JOYCE VERA LIVINGSTON GAUSE, individually,1 NATALIE GAUSE, as GAL on
behalf of JOYCE VERA LIVINGSTON and VERTIS GAUSE, individually, Plaintiffs,

               v.

NEW HANOVER REGIONAL MEDICAL CENTER, Defendant.


        Appeal by Plaintiffs from order entered 5 April 2016 by Judge Charles Henry

in New Hanover County Superior Court. Heard in the Court of Appeals 2 November

2016.


        The Law Offices of Adam Neijna, PLLC, by Adam M. Neijna, for Plaintiffs-
        Appellants.

        Harris, Creech, Ward & Blackerby, P.A., by Heather M. Beam, R. Brittain
        Blackerby, and Jay C. Salsman, for Defendant-Appellee.

        Linwood L. Jones for North Carolina Hospital Association, amicus curiae.


        INMAN, Judge.


        When a hospital patient injured in a fall during an x-ray examination brings a

claim for ordinary negligence, but pre-trial discovery reveals that the fall occurred



        1Per the custom of this Court, we style the caption of our opinion as it appears in the order
from which the appeal is taken. In this matter, following the deaths of Mr. and Mrs. Gause, this Court
allowed Plaintiffs’ Motion to Substitute Parties, ordering that “Natalie Joyce Gause shall be
substituted for Joyce Vera Livingston Gause, and Josie May Gause Brown shall be substituted for
Vertis Ceamore Gause.”
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when the x-ray technician was rending services requiring specialized skill and clinical

judgment, the claim sounds in medical malpractice and is subject to dismissal based

on the patient’s failure to comply with Rule 9(j) of the Rules of Civil Procedure.

        Plaintiffs Natalie Gause (“Natalie”) and Josie May Gause Brown (collectively

“Plaintiffs”), in their respective capacities for decedents Joyce Vera Livingston Gause

(“Mrs. Gause” or “Plaintiff Gause”), and her husband, Vertis Ceamore Gause, appeal

from an order dismissing Plaintiffs’ negligence cause of action and denying Plaintiffs’

Motion to Amend the Complaint.2 Because Plaintiffs’ complaint sounded in medical

malpractice, not ordinary negligence, we affirm the trial court.

                       I.       Factual and Procedural Background

        On 16 March 2015, Natalie drove her mother, Mrs. Gause, to the Emergency

Department of New Hanover Regional Medical Center (“Defendant” or “New

Hanover”) because Mrs. Gause was experiencing chest pains related to a fall several

days prior.      Mrs. Gause was 73-years-old and had a history of falling due to

unsteadiness, often requiring assistance to walk distances.

        At a triage station in the Emergency Department, a nurse assessed Mrs.

Gause’s chief complaint, determined her priority status, and ordered the hospital

protocol for evaluating a complaint of chest pain.                    The nurse entered an order

requesting, inter alia, an “x-ray chest PA or AP.”


        2 The trial court’s order also dismissed Plaintiffs’ claim of injury based on the theory of res ipsa
loquitor. Plaintiffs do not appeal that portion of the order.

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      A posterior-anterior (“PA”) chest x-ray requires the patient to be in a standing

position with an x-ray board, called a wall bucky, in front of the patient and the x-ray

tube behind the patient. An anterior-posterior (“AP”) chest x-ray may be taken with

the patient standing, sitting, or lying down. A “PA” x-ray is optimal because it

provides a superior image with the most information about the patient, allowing a

more accurate diagnosis.

      After waiting several minutes, Mrs. Gause was taken into a restricted area

within the emergency department and assessed by another nurse. Following the

second nurse’s assessment, the x-ray technician, Kayne Darrell (“Darrell”), met Mrs.

Gause and Natalie in the triage hallway and transported Mrs. Gause in a wheelchair

to a radiology room. Natalie remained in the hallway.

      Darrell and Mrs. Gause were the only two people in the radiology room when

Darrell explained the chest x-ray process to Mrs. Gause, stating that she would ask

Mrs. Gause to stand at the wall bucky. Darrell asked Mrs. Gause if she thought that

she would be able to stand for the x-ray. Mrs. Gause answered, “I think so.”

      According to Darrell, as soon as Mrs. Gause said, “I think so,” to Darrell’s

surprise she “immediately, and rapidly, stood up, unassisted” from the wheelchair.

According to a doctor with whom Darrell spoke later that day, Darrell said that “she

stood the patient up” from the wheelchair.




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       Darrell watched as Mrs. Gause took a few steps toward the wall bucky,

watched Mrs. Gause for three or four seconds, and assessed that Mrs. Gause seemed

“very stable.” Darrell then turned around and walked several steps away from the

patient to move a tube into position to take the x-ray. After three or four seconds,

Darrell turned back toward Mrs. Gause and saw her falling backward. Darrell

immediately ran to try to break the fall but could not reach Mrs. Gause before her

head struck the floor. Mrs. Gause suffered a severe traumatic brain injury as a result

of the fall.

       Mrs. Gause’s brain injury left her unable to communicate and unable to

independently perform basic activities of daily living. She became a resident at a

long-term nursing care facility where she received twenty-four-hour, around-the-

clock care. She died in the nursing care facility on 10 June 2016, approximately 15

months after the fall.

       On 15 July 2015, while Mrs. Gause was still living, Plaintiffs filed a complaint

in New Hanover County Superior Court alleging Defendant was liable for ordinary

negligence and negligence on a theory of res ipsa loquitur. In the ordinary negligence

claim, Plaintiffs alleged that “Defendant negligently/or carelessly:”

               a. transported Plaintiff to and/or from the x-ray room;

               b. asked Plaintiff to stand without properly supporting her;

               c. allowed Plaintiff to sit up and/or stand without properly
               securing her;


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             d. placed Plaintiff in an unsteady position;

             e. failed to take adequate measures to support Plaintiff;

             f. failed to properly secure Plaintiff while transporting her;

             g. allowed Plaintiff to be at risk of falling;

             h. failed to take adequate precautions and/or safety
             measures to prevent Plaintiff from falling while
             transporting her to and/or from x-ray[.]

             ....

The Complaint did not label any claim as one for medical malpractice and did not

contain a certification of compliance with Rule 9(j), which requires expert review prior

to the filing of a medical malpractice action.

      On 1 October 2015, Defendant filed an Answer asserting, inter alia, that the

Complaint “should be dismissed for failure of the Plaintiff[s] to comply with Rule 9(j)

of the North Carolina Rules of Civil Procedure.” The parties then proceeded with

discovery.

      In response to an interrogatory, Plaintiff Gause listed 20 specific ways that

Defendant was negligent, including, inter alia, contentions that Defendant “[f]ailed

to inquire as to Plaintiff’s condition, history of falls, limited mobility, problems with

standing, and risk of falling;” “[f]ailed to conduct a fall risk assessment to determine

whether to take the x-ray PA or AP;” and “[f]ailed to properly administer the x-ray.”




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      Plaintiffs’ counsel took the deposition of Darrell, who testified that she

assessed Mrs. Gause upon first meeting her and continuing until Mrs. Gause had

taken a few steps away from the wheelchair without assistance. Darrell testified that

her assessment was based on her clinical judgment and observations of the patient,

including the patient’s mental status, and on more than 22 years of experience as an

x-ray technician.

      Following written discovery and depositions, Defendant filed a Motion for

Summary Judgment.        Two days later, Plaintiffs filed a Motion to Amend the

Complaint to add a claim of medical negligence against Defendant. The proposed

Amended Complaint alleged that, pursuant to Rule 9(j), the medical care and relevant

records “have been reviewed by a person who is reasonably expected to qualify as an

expert witness under Rule 702 of the Rules of Evidence and who is willing to testify

that the medical care did not comply with the applicable standard of care.” The

proposed Amended Complaint did not allege when the expert review had occurred.

      Defendant’s Motion for Summary Judgment and Plaintiffs’ Motion to Amend

came on for hearing on 4 February 2016 in New Hanover Superior Court, Judge

Charles Henry presiding. On 5 April 2016, the trial court entered an order dismissing

Plaintiffs’ res ipsa loquitor claim, dismissing Plaintiffs’ negligence claim without

prejudice, and denying Plaintiffs’ Motion to Amend.

      Plaintiffs filed a Notice of Appeal.



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                              II.    Standard of Review

              Summary judgment is appropriate if the pleadings,
              depositions, answers to interrogatories, and admissions on
              file, together with the affidavits, if any, show that there is
              no genuine issue as to any material fact and that any party
              is entitled to a judgment as a matter of law. A trial court's
              grant of summary judgment receives de novo review on
              appeal, and evidence is viewed in the light most favorable
              to the non-moving party.

Sturgill v. Ashe Mem’l Hosp., Inc., 186 N.C. App. 624, 626, 652 S.E.2d 302, 304 (2007)

(citations and internal quotation marks omitted).

                                     III.   Analysis

      A.      Medical Malpractice or Ordinary Negligence Theory

      Plaintiffs argue that the trial court erred in dismissing their ordinary

negligence claim based on their failure to comply with a pleading requirement

applicable only to a medical malpractice claim. We disagree for two reasons. First,

Plaintiffs’ discovery responses reveal allegations that Defendant was negligent in

furnishing or failing to furnish professional services. Second, undisputed evidence

produced in discovery shows that Mrs. Gause’s injury stemmed from the x-ray

technician’s activities which required her to use clinical judgment. We conclude that

Plaintiffs’ claim necessarily sounds in medical malpractice and not in ordinary

negligence.

      In North Carolina, the distinction between a claim of medical malpractice and

ordinary negligence is significant for several reasons, including that medical


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malpractice actions cannot be brought without prior review of the medical care and

relevant medical records by a person reasonably expected to qualify as an expert and

to testify that the defendant provided substandard care. N.C. Gen. Stat. § 1A-1, Rule

9(j) (2015). Failure to allege compliance with Rule 9(j) in a complaint for medical

malpractice requires dismissal. Id.

        “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). A medical malpractice action is defined in

relevant part 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

medical, dental, or other health care by a health care provider. 3 N.C. Gen. Stat. § 90-

21.11(2)(a) (2015). “The statutory definition of medical malpractice is a broad one.”

Duke Univ. v. St. Paul Fire and Marine Ins. Co., 96 N.C. App. 635, 640, 386 S.E.2d

762, 766 (1990) (citation omitted).

        The term “professional services” is not defined by our statutes but has been

defined by this Court as “an act or service arising out of a vocation, calling,

occupation, or employment involving specialized knowledge, labor, or skill, and the




        3 A “health care provider” is “[a] person who pursuant to the provisions of Chapter 90 of the
General Statutes is licensed, or is otherwise registered or certified to engage in the practice of or
otherwise performs duties associated with any of the following: . . . radiology[.]” N.C. Gen. Stat. § 90-
21.11(1)(a). The parties do not dispute that an x-ray technician is a health care provider.


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labor or skill involved is predominantly mental or intellectual, rather than physical

or manual.” Sturgill, 186 N.C. App. at 628, 652 S.E.2d at 305 (citations and internal

quotation marks omitted). Our courts have classified as medical malpractice those

claims alleging injury resulting from activity that required clinical judgment and

intellectual skill. See Sturgill, 186 N.C. App. at 630, 652 S.E.2d at 306; Alston v.

Granville Health Sys., 221 N.C. App. 416, 421, 727 S.E.2d 877, 881 (2012). 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. See, e.g., Horsley v. Halifax

Reg’l Med. Ctr., Inc., 220 N.C. App. 411, 725 S.E.2d 420 (2012), and cases cited

therein.

      This Court in Sturgill, 186 N.C. App. at 631, 652 S.E.2d at 307, affirmed the

trial court’s order allowing a motion for summary judgment and dismissing the

plaintiff’s complaint for failure to comply with Rule 9(j). Sturgill involved a claim by

the estate of a 76-year-old man who suffered a severe head injury after falling in his

hospital room. Id. at 625, 652 S.E.2d at 304. The estate filed a complaint pleading

ordinary negligence. Id. at 626, 652 S.E.2d at 304. The defendant argued that the

claim was actually for medical malpractice and subject to dismissal because it did not

allege compliance with Rule 9(j). Id. at 626-27, 652 S.E.2d at 304. The trial court,

and ultimately this Court, agreed. Id. at 631, 652 S.E.2d at 307. Although the



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plaintiff contended that the hospital, through its nurses, was negligent in failing to

follow a fall prevention plan and supervise the decedent, this Court noted that the

complaint alleged that the decedent fell because nurses failed to restrain him in his

hospital bed. Id. at 628-29, 652 S.E.2d at 305. This Court also cited an affidavit

submitted by the plaintiff, filed in opposition to the motion for summary judgment,

stating that the decedent was injured because he was not “properly restrained.” Id.

at 629-30, 652 S.E.2d at 306. This Court held that “[b]ecause the decision to apply

restraints is a medical decision requiring clinical judgment and intellectual skill, . . .

it is a professional service.” Id. at 630, 652 S.E.2d at 306.

      Also on facts similar to those now before us, in Alston, 221 N.C. App. at 421,

727 S.E.2d at 881, this Court held that a claim arising from a patient’s fall in the

hospital sounded in medical malpractice.           The decedent in Alston was lying

unconscious on a hospital operating table when she fell to the floor and was injured.

Id. at 419, 727 S.E.2d at 880. The decedent’s estate sued the hospital and surgeon on

a theory of res ipsa loquitor, alleging that it was unknown how the decedent fell and

that the injury would not have occurred in the absence of negligence. Id. at 419, 727

S.E.2d at 879. Discovery, however, revealed that the decedent fell because medical

personnel had failed to secure her in restraints. Id. at 420-21, 727 S.E.2d at 880.

Following the defendants’ motions for summary judgment, the trial court dismissed

the action for failure to comply with Rule 9(j). Id. at 417, 421, 727 S.E.2d at 878, 881.



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Affirming the trial court, this Court held that the plaintiff could not state a claim for

res ipsa loquitor because the cause of the decedent’s fall was no longer unknown. Id.

at 420-21, 727 S.E.2d at 880. This Court also held that the plaintiff’s claim sounded

in medical malpractice because “[t]he evidence presented by [the d]efendants in

support of their summary judgment motions . . . shows that the decision to restrain a

patient under anesthesia is one that requires use of specialized skill and knowledge

and, therefore, is considered a professional service.” Id. at 421, 727 S.E.2d at 881

(citations omitted).

      Here, Plaintiffs’ Complaint alleged that “Defendant negligently and/or

carelessly,” inter alia, “failed to take adequate precautions and/or safety measures to

prevent Plaintiff [Gause] from falling while transporting her to and/or from x-ray;”

and/or “failed to perform such acts and/or take those measures necessary to protect

Plaintiff [Gause] from falling.” These allegations, general as they are, sound in

medical malpractice, because deciding what precautions and measures were

“adequate” and “necessary” required medical personnel to use clinical judgment and

intellectual skill. But our holding turns on more than the Complaint.

      Plaintiffs’ interrogatory responses specify numerous contentions that

Defendant, through its agents and employees, was negligent in furnishing or failing

to furnish the following services: assessing the patient, inquiring about and reviewing

the patient’s medical history, and administering the x-ray. Each of these services—



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assessment, inquiry, review, and administering a diagnostic imaging procedure—

involves specialized knowledge and skills which are predominantly mental or

intellectual, rather than physical or manual. See Lewis v. Setty, 130 N.C. App. 606,

608, 503 S.E.2d 673, 674 (1998).

      Darrell testified in deposition that she assessed Mrs. Gause from the moment

they met until the moment Darrell determined that she could walk away from Mrs.

Gause to position the x-ray tube. Darrell testified that her assessment was based

upon her clinical experience, judgment, and observations of the patient. Plaintiffs

argue it could be reasonably inferred from the evidence that despite her testimony,

Darrell used no judgment or skill and performed no assessment of Mrs. Gause, but

simply stood her up and walked away, allowing her to fall. Such an inference,

however, would not remove this case from the statutory definition of medical

malpractice which includes a claim for injury “arising out of the furnishing or failure

to furnish professional services.” N.C. Gen. Stat. § 90-21.11(2)(a) (emphasis added).

      It is undisputed that Darrell took Mrs. Gause into her care following a nurse’s

order for “x-ray chest PA or AP.” The nature of the order—providing for alternative

methods of imaging—necessarily required Darrell to make a clinical judgment

regarding how to administer the x-ray. Darrell testified that when making such

decisions, “what you’re trying to do is – is give the radiologist an optimal image

without compromising the patient’s safety and comfort.” Whether Darrell failed to



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assess Mrs. Gause or inadequately assessed her in choosing to take a standing x-ray,

Mrs. Gause’s injury arose from medical malpractice as defined by statute.

      Plaintiffs contend that this case is controlled by a line of decisions classifying

claims in medical settings as ordinary negligence. Those cases are all factually and

legally inapposite.

      In Norris v. Rowan Mem’l Hosp., Inc., 21 N.C. App. 623, 623, 205 S.E.2d 345,

346 (1974), a 75-year-old patient fell from a hospital bed and fractured her hip after

nurses failed to raise her bedrails in clear violation of a hospital rule. This Court held

that “the alleged breach of duty did not involve the rendering or failure to render

professional nursing or medical services requiring special skills[,]” because the nurses

were not allowed any discretion about raising the bedrails. Id. at 626, 205 S.E.2d at

348. Unlike the nurses in Norris, Darrell was required by the x-ray order to decide

whether to take the x-ray with Mrs. Gause standing, sitting, or lying down.

      In Lewis v. Setty, 130 N.C. App. at 607, 503 S.E.2d at 673, the plaintiff, a

quadriplegic, fell and was injured while being transferred from an examination table

to his wheelchair by the defendant doctor and the plaintiff’s aide. In holding that the

plaintiff’s action sounded in ordinary negligence, this Court reasoned that “the

removal of the plaintiff from the examination table to the wheelchair did not involve

an occupation involving specialized knowledge or skill, as it was predominately a

physical or manual activity.” Id. at 608, 503 S.E.2d at 674. Unlike the defendants in



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Lewis, Darrell was not engaged in a predominately physical or manual activity when

Mrs. Gause fell.

       In Horsley v. Halifax Reg’l Med. Ctr., Inc., 220 N.C. App. at 412, 725 S.E.2d at

421, the plaintiff brought an action for gross negligence after falling from a standing

position while admitted as a patient at the defendant hospital. Hospital nurses knew

that the plaintiff required assistance to stand or walk without falling. Id. at 412, 725

S.E.2d at 420. Later that evening, the plaintiff was standing against the wall near

the nurses’ station and said aloud that she was going to fall; however, none of the

nurses offered her a wheelchair, cane, or walker. Id. at 412, 725 S.E.2d at 421. The

plaintiff fell and was injured. Id. The trial court dismissed the plaintiff’s claim for

failure to include a 9(j) certification. Id. at 412, 725 S.E.2d at 421. This Court

reversed the trial court, reasoning that “nothing in the record indicates that the

decision to offer a cane to a patient requires a written order or a medical assessment”

or “require[s] specialized skill[,]” and therefore “expert testimony . . . is not necessary

to develop a case of negligence for the jury.” Id. at 414, 725 S.E.2d at 421-22. By

contrast, Plaintiffs here asserted in their discovery responses that Defendant failed

to properly assess Mrs. Gause. And Darrell confirmed in her deposition that deciding

whether to take a standing x-ray required assessment and clinical judgment.

       Plaintiffs also argue that Defendant is estopped from asserting that this action

is one for medical malpractice because Defendant objected to discovery on the basis



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that Plaintiffs had not alleged a medical malpractice cause of action.           Judicial

estoppel bars inconsistent assertions of fact, but generally “the doctrine should not

be applied to prevent the assertion of inconsistent legal theories . . . such a limitation

is necessary to avoid interference with our liberal pleading rules, which permit a

litigant to assert inconsistent, even contradictory, legal positions within a lawsuit.”

Whitacre P’ship v. Biosignia, Inc., 358 N.C. 1, 32, 591 S.E.2d 870, 890 (2004).

Plaintiffs’ argument is without merit.

      In sum, Plaintiffs’ claim sounds in medical malpractice and not in ordinary

negligence, and it was subject to dismissal for failing to comply with Rule 9(j).

Further, because Plaintiffs’ Complaint contained no 9(j) certification, it did not allege

a viable claim for medical malpractice.

      B.     Considering Matters Outside the Pleadings

      The trial court, consistent with our precedent, determined that Plaintiffs’

Complaint was subject to dismissal for failure to comply with Rule 9(j) based in part

on written discovery responses and deposition testimony. See Alston, 221 N.C. App.

at 420-21, 727S.E.2d at 880-81 (affirming summary judgment against the plaintiff

because evidence produced in discovery revealed that the plaintiff’s claim was for

medical malpractice and not negligence res ipsa loquitur); Sturgill, 186 N.C. App. at

629-30, 652 S.E.2d at 306 (affirming summary judgment against the plaintiff based

in part on affidavit submitted in evidence). In arguing that the trial court was



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prohibited from considering matters outside the pleadings,4 Plaintiffs misconstrue

our precedent regarding the interaction between Rule 9(j) and Rule 56 of the North

Carolina Rules of Civil Procedure, which provides for dismissal of an action on

summary judgment. N.C. Gen. Stat. § 1A-1, Rule 56 (2015).

        Plaintiffs misstate the holding by the North Carolina Supreme Court in

Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 102 (2002). In that decision,

vacating a decision by this Court regarding the constitutionality of Rule 9(j), the

Supreme Court held that the issue was not preserved for appeal because the

plaintiff’s complaint asserted res ipsa loquitur “as the sole basis for the negligence

claim.” Id. The Court explained that “pleadings have a binding effect as to the

underlying theory of plaintiff's negligence claim[,]” and treated the plaintiff’s

complaint as a binding judicial admission that his claim, if viable at all, was




        4 Defendant argues that this Court lacks jurisdiction to determine whether the trial court erred
by considering matters outside the pleadings because Plaintiffs’ Notice of Appeal and Proposed Issues
on Appeal contained in the settled record did not designate it as an issue. Defendant’s argument is
without merit. Rule 3(d) of the North Carolina Rules of Appellate Procedure requires a notice of appeal
to identify the party who is appealing, the judgment or order from which the party appeals, the court
to which the party addresses the appeal, and the signature of the appealing party’s counsel of record.
N.C. R. App. P. 3(d). Plaintiffs’ Notice of Appeal identified all of the required information and specified
that it was appealing from the trial court’s order “which dismissed Plaintiffs’ action without prejudice.”
The appeal of the dismissal inherently includes an appeal from the trial court’s analysis and
conclusions leading to the dismissal, including its reference to matters outside the pleadings. See
Smith v. Indep. Life Ins. Co., 43 N.C. App. 269, 273, 258 S.E.2d 864, 867 (1979). Rule 10(b) of the
North Carolina Rules of Appellate Procedure requires the appellant to include at the conclusion of the
record a numbered list of proposed issues presented on appeal, but the rule also provides that
“[p]roposed issues on appeal are to facilitate the preparation of the record on appeal and shall not limit
the scope of the issues presented on appeal in an appellant’s brief.” N.C. R. App. P. 10(b) (emphasis
added).


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supported only by the theory of res ipsa loquitur. Id. Anderson has been construed

by this Court to prohibit a plaintiff from changing the theory of negligence without

first amending the complaint.       It does not mean that the trial court must look

exclusively to the complaint in deciding on summary judgment that a plaintiff’s claim

must be dismissed for failure to comply with Rule 9(j). Anderson’s reasoning was

applied by this Court in Sturgill when the plaintiff argued a theory of negligence

different from the theory alleged in her complaint, which this Court held constituted

a claim for medical malpractice. Sturgill, 186 N.C. App. at 630, 652 S.E.2d at 306.

This Court held that “plaintiff is bound by her pleadings, and may not raise this new

theory of negligence for the first time on appeal.” Id. at 630, 652 S.E.2d at 306-07.

Plaintiffs’ argument is without merit.

      C.     Motion to Amend

      Plaintiffs contend that the trial court abused its discretion in denying

Plaintiffs’ Motion to Amend the Complaint. We do not have jurisdiction to review the

trial court’s order as to this issue because Plaintiff’s’ Notice of Appeal did not refer to

or encompass this issue, nor can the issue be fairly inferred from the language in the

Notice of Appeal.

      Rule 3(d) of the North Carolina Rules of Appellate Procedure provides that a

notice of appeal “shall designate the judgment or order from which appeal is taken .

. . .” N.C. R. App. P. 3(d). “Rule 3 is jurisdictional, and if the requirements of the rule



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are not complied with, the appeal must be dismissed.” Foreman v. Sholl, 113 N.C.

App. 282, 291, 439 S.E.2d 169, 175 (1994) (citation omitted). “[T]he appellant must

appeal from each part of the judgment or order appealed from which appellant desires

the appellate court to consider . . . .” Smith, 43 N.C. App. at 272, 258 S.E.2d at 866.

Smith recognized that some specific issues may “merge” into broader issues. Id. at

272-73, 258 S.E.2d at 866. There, the plaintiff’s notice of appeal referred to the trial

court’s order allowing “Defendants’ Motions for Summary Judgment.” Id. at 272, 258

S.E.2d at 866. This Court held that the notice was sufficient to include in its scope

the plaintiff’s appeal from the trial court’s conclusion that the complaint failed to

state a claim for which relief could be granted, noting that “[t]he fact that the trial

court labeled the defense in the order as one for failure to state a claim does not

prevent us from regarding it as one for summary judgment.” Id. at 273, 258 S.E.2d

at 866-67 (citation omitted). This Court further held that “a notice of appeal should

be deemed sufficient to confer jurisdiction on the appellate court on any issue if, from

the content of the notice, it is likely to put an opposing party on guard the issue will

be raised[.]” Id. at 274, 258 S.E.2d at 867.

      In this case, Plaintiffs’ Notice of Appeal specified that Plaintiffs were appealing

the trial court’s order “which dismissed Plaintiffs’ action without prejudice.” Unlike

in Smith, the trial court’s denial of Plaintiffs’ Motion to Amend was entirely

independent of the trial court’s ruling dismissing the action without prejudice. See



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Foreman, 113 N.C. App. at 292, 439 S.E.2d at 176 (holding notice was insufficient to

preserve third issue for appeal because the plaintiffs stated only two issues for appeal

in their notice, and the third issue was not sufficient to dismiss the plaintiffs’ entire

claim). The trial court could have denied Defendant’s Motion for Summary Judgment

and still rejected Plaintiffs’ Motion to Amend. Theoretically, at least, the trial court

could have dismissed Plaintiffs’ ordinary negligence claim and allowed Plaintiffs’

Motion to Amend to state a medical malpractice claim, although our precedent

disfavors such an outcome. See Alston v. Hueske, __ N.C. App. __, __, 781 S.E.2d 305,

310 (2016) (“Because the legislature has required strict compliance with [Rule 9(j)],

our courts have ruled that if a pleader fails to properly plead his case in his complaint,

it is subject to dismissal without the opportunity for the plaintiff to amend his

complaint under Rule 15(a).”); see also Keith v. N. Hosp. Dist. of Surry Cty., 129 N.C.

App. 402, 405, 499 S.E.2d 200, 202 (1998) (“To read Rule 15 in this manner would

defeat the objective of Rule 9(j), which . . . seeks to avoid the filing of frivolous medical

malpractice claims.”).

       Finally, because the Notice of Appeal identified the order as dismissing the

action without prejudice, it is not fairly inferred from the Notice that an appeal from

the ruling on the Motion to Amend was intended or even necessary. Rule 3(d) can be

treacherous for an appellant whose notice identifies one but not all provisions in the

order or judgment from which the appellant seeks relief.



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                      GAUSE V. NEW HANOVER REG’L MED. CTR.

                                   Opinion of the Court



                                  IV.    Conclusion

      For the reasons we have explained, we affirm the trial court’s conclusion that

this is an action for medical malpractice requiring a certification as provided in Rule

9(j), and we dismiss the remainder of Plaintiffs’ appeal for lack of jurisdiction.

      AFFIRMED IN PART; DISMISSED IN PART.

      Judges DAVIS and ENOCHS concur.




                                          - 20 -
