                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-1367


MARGARET LITTLEPAIGE, Personal representative of the Estate
of Alfred Littlepaige, deceased,

                Plaintiff − Appellant,

           v.

UNITED STATES OF AMERICA,

                Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
Senior District Judge. (5:10-cv-00571-H)


Argued:   May 14, 2013                    Decided:   June 12, 2013


Before DUNCAN, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished opinion. Judge Agee wrote the majority
opinion, in which Judge Duncan joined.    Judge Davis wrote a
dissenting opinion.


ARGUED: Peter Joseph Sarda, CREECH LAW FIRM, PA, Raleigh, North
Carolina, for Appellant. Shailika K. Shah, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.      ON
BRIEF:   Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, W. Ellis Boyle, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
AGEE, Circuit Judge:

     Margaret   Littlepaige      (“Mrs.          Littlepaige”)     appeals     the

district   court’s   dismissal    of       her    Federal   Tort    Claims     Act

(“FTCA”)   complaint   against    the       United     States.       The     court

concluded that Mrs. Littlepaige’s complaint sounded in medical

malpractice under North Carolina law, and was therefore barred

in the absence of a state medical malpractice certification,

which had not been filed.        For the reasons discussed below, we

affirm the judgment of the district court.



                                   I.

     In September 2007, Alfred Littlepaige (“Mr. Littlepaige”),

a veteran of the Korean War and husband of Mrs. Littlepaige, was

admitted to the Durham Veterans Administration (“VA”) Medical

Center (“VA Hospital”) in Durham, North Carolina, suffering from

advanced stages of dementia. 1         Mr. Littlepaige was placed on a

“falls precaution,” a procedure which the complaint describes as

a period during which “the [VA Hospital] undertook to provide

special care and observation to prevent [Mr. Littlepaige] from

falling to the ground while hospitalized.”             (J.A. 3.)

     1
       Because this appeal arises out of the grant of a motion to
dismiss, we accept as true all well-pleaded facts and construe
those facts in the light most favorable to Mrs. Littlepaige, the
plaintiff and nonprevailing party. See Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).


                                       3
      On September 21, 2007, hospital staff found Mr. Littlepaige

lying on the floor beside his bed.              After a cursory examination,

VA Hospital attendants determined that Mr. Littlepaige was not

injured.     The next day, Mrs. Littlepaige found Mr. Littlepaige

again lying on the floor, bruised and unable to stand.                         On

September 25, four days after Mr. Littlepaige was first found on

the   floor,    he   was   given    an       x-ray   exam   for   an   unrelated

intestinal     problem.     In     the   course      of   reviewing    the   x-ray

results, VA physicians discovered that Mr. Littlepaige had a

fractured hip.       Shortly thereafter, Mr. Littlepaige underwent

surgery to correct the hip fracture. 2

      In 2009, Mrs. Littlepaige, on behalf of her late husband’s

estate, filed an administrative claim with the VA for damages

resulting from the injuries Mr. Littlepaige allegedly suffered

while a patient at the VA Hospital.                  The VA later denied Mrs.

Littlepaige’s administrative claim, and in 2010, she filed a

complaint against the United States pursuant to the FTCA in the

United States District Court for the Eastern District of North

Carolina.      In her complaint, Mrs. Littlepaige alleged that as a

“result of the failure of [the VA Hospital] to properly attend

      2
       Mr. Littlepaige died sometime between September 2007, and
the commencement of this litigation in December 2010.        The
record does not reflect his cause of death, but there is no
allegation that the VA Hospital’s alleged negligence contributed
to Mr. Littlepaige’s death.



                                         4
to [Mr. Littlepaige, he] suffered the pain of a hip fracture,

the pain of surgical repair for his broken hip, permanent loss

of use of his leg and continued pain and suffering.”                   (J.A. 3-

4).   Mrs. Littlepaige further alleged that “[f]alls by a patient

under a falls precaution should not occur with the exercise of

due care by Defendant [VA Hospital].”               (J.A. 3).    The complaint

also included the allegation that “[a]s a direct and proximate

result of the . . . [VA Hospital’s] failure to diagnose the

broken      hip   and   because    of   [the   VA     Hospital’s]   failure   to

properly treat [Mr. Littlepaige, he] suffered pain at the hands

of the [VA Hospital.]”       (J.A. 4).

      The    government    filed    a   motion   to    dismiss   the   complaint

because no certification as required by Rule 9(j) of the North

Carolina Rules of Civil Procedure was included in the pleadings. 3

Mrs. Littlepaige responded to the motion to dismiss, arguing

that a Rule 9(j) certification is unnecessary because she pleads

only ordinary negligence, not a claim for medical malpractice.

In the alternative, Mrs. Littlepaige contended that even if she

was raising a medical malpractice claim, her complaint falls


      3
       In essence, Rule 9(j) requires that, prior to the filing
of a medical malpractice complaint in North Carolina, a
plaintiff must certify that an expert has reviewed the medical
malpractice claim and is prepared to testify that the defendant
did not meet the standard of care (i.e., that the medical
malpractice claim has merit).



                                         5
within an exception to Rule 9(j) for pleadings that “allege[]

facts    establishing    negligence         under    the      existing      common-law

doctrine of res ipsa loquitur.”               N.C. Gen. Stat. § 1A-1, Rule

9(j)(3).

      The    district   court      granted     the       government’s       motion    to

dismiss,     finding     that      Mrs.       Littlepaige’s          “claims      about

defendant’s execution of its falls precaution plan and failure

to   properly   diagnose     his    injuries        is    a   medical    malpractice

action under North Carolina law.”               (J.A. 41).           The court also

held that “the exception for res ipsa loquitur does not apply

here.”   (J.A. 42).

      Mrs.    Littlepaige     noted     a     timely      appeal,     and    we      have

jurisdiction pursuant to 28 U.S.C. § 1291.



                                       II.

      Mrs. Littlepaige argues on appeal that the district court

erred in dismissing her FTCA complaint for two reasons: (1) her

complaint    sounded    in   ordinary       negligence,       thus    obviating       the

need for a Rule 9(j) certification; and (2) in the alternative,

her complaint adequately stated a claim for medical malpractice

under the common law doctrine of res ipsa loquitur, thus falling

into an exception to Rule 9(j).               For the following reasons, we

disagree with Mrs. Littlepaige and affirm the judgment of the

district court.

                                          6
                                          A.

      This Court reviews de novo the grant of a Rule 12(b)(6)

motion to dismiss for failure to state a claim.                     Coleman v. Md.

Ct. App., 626 F.3d 187, 190 (4th Cir. 2010).                        “To survive a

motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’”           Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)).



                                          B.

      A plaintiff may recover against the United States only to

the   extent    that    it   has   expressly       waived    sovereign     immunity.

Welch   v.     United   States,    409    F.3d     646,     650   (4th    Cir.   2005)

(citing United States v. Sherwood, 312 U.S. 584, 586 (1941)).

Congress waived the sovereign immunity of the United States for

certain torts committed by federal employees when it enacted the

FTCA in 1946.       Kerns v. United States, 585 F.3d 187, 194 (4th

Cir. 2009) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)).

However, the FTCA is a limited waiver of immunity, imposing tort

liability on the United States only “in the same manner and to

the     same     extent      as    a     private     individual          under    like

circumstances,” 28 U.S.C. § 2674, and only to the extent that “a

private person[ ] would be liable to the claimant in accordance

                                          7
with the law of the place where the act or omission occurred,”

id. § 1346(b)(1).      In other words, a claimant “has an FTCA cause

of action against the government only if she would also have a

cause of action under state law against a private person in like

circumstances.”     Miller v. United States, 932 F.2d 301, 303 (4th

Cir. 1991).    Thus, the substantive law of each state establishes

the cause of action.       Kerns, 585 F.3d at 194; Unus v. Kane, 565

F.3d   103,   117   (4th   Cir.   2009).   In    the   case   at   bar,   that

substantive law is the state law of North Carolina.

       Pursuant to Rule 9(j),

       [a]ny complaint alleging medical malpractice by a
       health care provider . . . shall be dismissed unless:
       (1) [t]he 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 . . . and who is willing to testify
       that the medical care did not comply with the
       applicable standard of care.

N.C. Gen. Stat. § 1A-1, Rule 9(j).              As the Supreme Court of

North Carolina has explained,

       [t]he legislature specifically drafted Rule 9(j) to
       govern the initiation of medical malpractice actions
       and to require physician review as a condition for
       filing the action.    The legislature’s intent was to
       provide a more specialized and stringent procedure for
       plaintiffs in medical malpractice claims through Rule
       9(j)’s requirement of expert certification prior to
       the filing of a complaint.

Thigpen v. Ngo, 558 S.E.2d 162, 166 (N.C. 2002).



                                      8
      In an action under the FTCA, “[w]e must rule as the North

Carolina courts would, treating decisions of the Supreme Court

of North Carolina as binding, and departing from an intermediate

court’s fully reasoned holding as to state law only if convinced

that the state's highest court would not follow that holding.”

Iodice   v.     United     States,    289     F.3d     270,   275    (4th    Cir.    2002)

(internal quotation marks and alteration omitted).                            As to Rule

9(j),    the    Supreme     Court     of    North      Carolina      has    stated     that

“medical       malpractice       complaints      [in    North       Carolina]      have    a

distinct      requirement     of     expert     certification.”             Thigpen,      558

S.E.2d at 165 (emphasis added).                    The district courts in this

circuit are also unanimous that a Rule 9(j) certification is

required to sustain a medical malpractice action under the FTCA

in   North     Carolina.      See,     e.g.,       Lauer   v.     United    States,       No.

1:12cv41, 2013 WL 566124, at *4 (W.D.N.C. Feb 13, 2013); Baker

v.   United     States,    No.     5:11-CT-3070-D,         2013     WL   211254,     at   *5

(E.D.N.C. Jan. 18, 2013); Hall v. United States, No. 5:10-CT-

3220-BO,       2013   WL   163639,     at     *3     (E.D.N.C.       Jan.    15,    2013);

Muhammad v. United States, No. 5:11-CT-3126-FL, 2012 WL 3957473,

at *3 (E.D.N.C. Sept. 10, 2012).                     It thus appears that, where

applicable, a Rule 9(j) certification is a mandatory requirement

for a plaintiff in a North Carolina medical malpractice action.

      We turn first, therefore, to Mrs. Littlepaige’s contention

that her complaint sounded in ordinary negligence, thus avoiding

                                            9
the   Rule   9(j)     expert   certification    requirement.         The   North

Carolina     Court    of   Appeals   has    provided   a   helpful    (if   not

precedential)        distinction     between   ordinary     negligence      and

medical malpractice under North Carolina law in the context of a

medical malpractice case.

      According to N.C. Gen. Stat. § 90-21.11, “the term
      ‘medical malpractice action’ means 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.”       When
      nurses make “medical decision[s] requiring clinical
      judgment and intellectual skill,” they are providing
      professional   services,   and   therefore   the  action
      against them must be certified per Rule 9(j).
      Sturgill v. Ashe Mem'l Hosp., Inc., 652 S.E.2d 302,
      306 (N.C. Ct. App. 2007), rev. denied, 658 S.E.2d 662
      (N.C. 2008).     Corporate negligence actions brought
      against hospitals which pertain to clinical patient
      care sound in medical malpractice, while such actions
      which   arise    out    of   policy,    management,   or
      administrative decisions sound in ordinary negligence.
      Estate of Waters v. Jarman, 547 S.E.2d 142, 145 (N.C.
      Ct. App. 2001).     Examples of policy, management, or
      administrative    decisions    include    “granting   or
      continuing hospital privileges, failing to monitor or
      oversee performance of the physicians, credentialing,
      and failing to follow hospital policies[.]” Id. “In
      determining whether or not Rule 9(j) certification is
      required, the North Carolina Supreme Court has held
      that ‘pleadings have a binding effect as to the
      underlying theory of plaintiff's negligence claim.’”
      Sturgill, 652 S.E.2d at 305 (quoting Anderson v.
      Assimos, 572 S.E.2d 101, 102 (N.C. 2002)).

Deal v. Frye Reg’l Med. Ctr., Inc., 691 S.E.2d 132 (table), 2010

WL 522727, at *2 (N.C. Ct. App. Feb. 16, 2010) (alterations in

original).



                                       10
                                             i.

       Applying these standards to the case at bar, it is clear

that Mrs. Littlepaige’s complaint sounds in medical malpractice,

not ordinary negligence.                Mrs. Littlepaige’s complaint alleges,

inter alia,

  •    “From       September       18   through         September      25,     2007,       [Mr.

       Littlepaige] was under a “falls precaution” during which

       the     defendant       undertook      to        provide      special        care    and

       observation to prevent the defendant from falling to the

       ground while hospitalized.”                (J.A. 3 (emphasis added).)

  •    “Falls by a patient under a falls precaution should not

       occur with the exercise of due care by the Defendant[.]”

       (J.A. 3.)

  •    “As a direct and proximate result of [the VA Hospital’s]

       failure to provide adequate supervision, because of [the VA

       Hospital’s] failure to diagnose the broken hip and because

       of    the    [VA     Hospital’s]      failure       to     properly     treat        [Mr.

       Littlepaige,         he]   suffered    pain       at    the   hands     of    [the    VA

       Hospital].”        (J.A. 4 (emphasis added).)

       The plain language of the complaint demonstrates that Mrs.

Littlepaige’s action is one for medical malpractice as that term

is applied under North Carolina law.                          As recounted above, the

North Carolina statute defines “medical malpractice action” as

“[a]   civil       action    for    damages       for    personal      injury       or     death

                                             11
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.”           N.C.     Gen.       Stat.   § 90-

21.11(2)a.       The allegations in the complaint in this case fit

squarely within that definition.                  The complaint describes the

falls precaution as a “special duty” that can only arise as a

consequence of the provision of professional medical services.

The complaint alleges harm as a consequence of the “failure to

diagnose” and “failure to treat” Mr. Littlepaige.                        In short, the

complaint    sought    damages         “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.           It    thus    alleged     medical        malpractice,        not

ordinary negligence.

       Furthermore, North Carolina law leaves no room for pleading

in the alternative under the facts of this case.                               The facts

alleged in the complaint are that the VA Hospital is a “health

care   provider,”     and      that,    as    a   result    of    its     provision     of

“professional services” Mr. Littlepaige suffered injury.                              Even

the most liberal construction of Mrs. Littlepaige’s complaint

cannot escape the ambit of Rule 9(j) because it plainly pleads a

“medical malpractice action” under North Carolina law.

       Our conclusion that Mrs. Littlepaige’s complaint sounds in

medical     malpractice        is   consistent      with        Deal,    a     persuasive

                                             12
opinion of the North Carolina Court of Appeals. 4                         In Deal, the

court considered and rejected a claim virtually identical to

that       brought    by   Mrs.    Littlepaige     here.         The    Deal    plaintiff

brought a claim that a hospital’s failure to conduct a “Fall

Risk       Screen    Assessment”     resulted      in   injury.         Deal,    2010    WL

522727       at     *1.    The     plaintiff     failed    to    file     a    Rule    9(j)

certification, the complaint was dismissed, and the plaintiff

argued on appeal that the case sounded in ordinary negligence

only.         The     North   Carolina     Court    of     Appeals       rejected      that

contention,          concluding     that   the   fall     risk    screening       process

involved “the rendering of professional services” that required

“clinical         judgment    and     intellectual        skill.”         Id.     at    *4.

Accordingly, Rule 9(j) certification was required.

       We    see     little   to    distinguish     this    case       from    Deal.    In

determining whether the VA Hospital staff properly implemented

       4
       Pursuant to North Carolina Rules of Appellate Procedure,
citation to unpublished opinions of the North Carolina Court of
Appeals is “disfavored,” except where the “unpublished opinion
has precedential value to a material issue in the case and . . .
there is no published opinion that would serve as well.”    N.C.
R. App. P. 30(e)(3); see also State ex rel. Moore Cnty. Bd. of
Educ. v. Pelletier, 606 S.E.2d 907, 909 (N.C. Ct. App. 2005)
(“[C]itation to unpublished opinions is intended solely in those
instances where the persuasive value of a case is manifestly
superior to any published opinion.”).     In this instance, the
facts of Deal are so closely aligned with the facts of this case
that we believe that “no published opinion . . . would serve as
well” as Deal to support the proposition that Mrs. Littlepaige’s
complaint sounds in medical malpractice as a matter of law. See
N.C. R. App. P. 30(e)(3).



                                           13
the falls precaution plan, the district court would undoubtedly

have to resolve issues related to standards of medical care and

the   medical   judgment     of   VA   Hospital        staff.          This   is    not   a

premises liability action or an action challenging some non-

medical aspect of hospital management.                  Cf. Estate of Waters v.

Jarman, 547 S.E.2d 142, 145 (N.C. Ct. App. 2001) (holding that

the reasonably prudent person standard of care applies in suits

claiming    negligence       on     the        part     of      the     hospital        for

administrative    or    management        deficiencies).              Rather,      by   the

plain   terms    of    the   complaint,         Mrs.     Littlepaige          challenged

aspects of her husband’s medical care.                       We conclude on these

facts   that    the    claim      sounds       in     medical     malpractice,          the

strictures of Rule 9(j) apply, and Mrs. Littlepaige failed to

comply with that rule.



                                       ii.

      In the alternative, Mrs. Littlepaige argues that if her

claim sounds in medical malpractice, she was not required to

file a Rule 9(j) certification because she adequately pled under

the common law doctrine of res ipsa loquitur.                         Accordingly, she

argues that her claim falls into an exception to Rule 9(j).                             See

N.C. Gen. Stat. § 1A-1, Rule 9(j)(3).                   Notwithstanding the fact

that Mrs. Littlepaige did not mention the doctrine of res ipsa

loquitur in her complaint in this case, we do not agree that the

                                          14
facts alleged would give rise to application of that common law

doctrine.

     Res ipsa loquitur is an exception, not the rule, to medical

malpractice cases in North Carolina.

     To warrant the submission of a malpractice case to the
     jury there must be proof of facts or circumstances
     which permit a legitimate inference of actionable
     negligence on the part of the physician, surgeon, or
     dentist.    A showing of an injurious result is not
     enough.   The doctrine of res ipsa loquitur cannot be
     relied on to supply deficiencies in the proof.

Boyd v. Kistler, 155 S.E.2d 208, 210 (N.C. 1967).                 The North

Carolina    Court   of   Appeals    “has   determined     that   in   medical

malpractice cases, the doctrine of res ipsa loquitur should be

restrictively applied, because the average juror is unfit to

determine whether a plaintiff's injury would rarely occur in the

absence of negligence.”      Rowell v. Bowling, 678 S.E.2d 748, 751

(N.C. Ct. App. 2009) (quotation marks and alterations omitted).

     Previously, this Court has held that the doctrine of
     res ipsa loquitur applies in situations where the
     facts or circumstances accompanying an injury by their
     very nature raise a presumption of negligence on the
     part of a defendant.    It is appropriate to use the
     doctrine when no proof of the cause of an injury is
     available, the instrument involved in the injury is in
     the exclusive control of a defendant, and the injury
     is of a type that would not normally occur in the
     absence of negligence.

Id. (internal quotation marks, quotation marks, citation, and

alterations    omitted).           Accordingly,   there     is    a    strong




                                      15
presumption    under     North    Carolina    law   that,     in    the     medical

malpractice context, res ipsa loquitur will not apply.

       For the doctrine to apply in a medical malpractice
       claim, a plaintiff must allege facts from which a
       layperson could infer negligence by the defendant
       based   on   common    knowledge   and   ordinary    human
       experience.    Diehl v. Koffer, 536 S.E.2d 359, 362
       (N.C. Ct. App. 2000); see Bowlin [v. Duke Univ.], 423
       S.E.2d [320,] 323 [(N.C. Ct. App. 1992)] (concluding
       that   the   doctrine    of    res  ipsa   loquitur    was
       inappropriate where a layperson, without the benefit
       of   expert   testimony,    would  have   no   basis   for
       concluding the physician was negligent in extracting
       bone marrow merely because the plaintiff's nerve was
       injured during the procedure); Grigg v. Lester, 401
       S.E.2d 657, 659 (N.C. Ct. App. 1991) (holding that the
       doctrine of res ipsa loquitur did not apply in a case
       involving a tear in the plaintiff's uterus during a
       caesarean section because a layperson would not be
       able to determine that the force exerted by the
       physician   during   the   procedure   was   improper   or
       excessive).

Smith v. Axelbank, 730 S.E.2d 840, 843 (N.C. Ct. App. 2012).

North Carolina courts have thus articulated a bright-line rule

that a malpractice claim may not be brought on a theory of res

ipsa   loquitur   unless    the    facts     alleged    are    such   that     “the

negligence complained of must be of the nature that a jury—

through common knowledge and experience—could infer.”                      Diehl v.

Koffer, 536 S.E.2d 359, 362 (N.C. Ct. App. 2000).

       We have reviewed the complaint and conclude that the facts

alleged,   even   when    construed    liberally,      are    not   such    that   a

layperson could infer negligence on the part of the VA Hospital

based on common knowledge.            Mrs. Littlepaige alleged that Mr.


                                       16
Littlepaige was placed on a falls precaution, was twice found on

the floor, and some days later an injury was diagnosed.                On the

allegations in the complaint, Mr. Littlepaige could have been

injured   prior   to   his   admission    to   the   VA   Hospital,    or   his

injuries could have come about notwithstanding the exercise of

due care by VA Hospital staff.           While Mrs. Littlepaige need not

eliminate every cause, other than the VA Hospital’s negligence,

for Mr. Littlepaige’s injuries, the universe of uncertainties in

this case is so vast as to defeat the inference of negligence

necessary to advance a claim under the doctrine of res ipsa

loquitur.   We therefore conclude that Mrs. Littlepaige has not

adequately pled res ipsa loquitur, and thus the exception to

Rule 9(j) does not apply.        Because a private person under like

circumstances would not be liable for medical malpractice under

North Carolina law, the district court did not err in dismissing

Mrs. Littlepaige’s FTCA complaint.



                                   III.

     For the foregoing reasons, the judgment of the district

court is affirmed.

                                                                      AFFIRMED




                                    17
DAVIS, Circuit Judge, dissenting:

       Because,       in    one      fell     swoop,    my    friends        in    the    majority

manage    to        misapply      both       federal      procedural          law    and       North

Carolina substantive law, I respectfully dissent.

       “[R]eading          the       complaint        ‘liberally        in    favor       of     the

plaintiff,’” Sciolino v. City of Newport News, Va., 480 F.3d

642,    651     (4th       Cir.      2007)     (quoting       Anderson        v.    Found.       for

Advancement, Educ. and Emp’t of Am. Indians, 155 F.3d 500, 505

(4th Cir. 1998) (citing, inter alia, Fed. R. Civ. P. 8)), Mrs.

Littlepaige states a claim for ordinary negligence. She alleges

that    her    husband         was     “under    the     exclusive        care      of    [the    VA

Hospital],”         the    VA     Hospital       failed      to   “observe          and    monitor

[him],” her husband fell from his bed, and he “suffered a broken

hip and bruises and contusions.” J.A. 2–3. “[A] jury [is] fully

capable without aid of expert opinion to apply the standard of

the reasonably prudent man” to any evidence in support of these

allegations. Norris v. Rowan Mem’l Hosp., Inc., 205 S.E.2d 345,

348    (N.C.    Ct.       App.    1974).      Indeed,     such      assertions        are      quite

similar to claims of ordinary negligence that arise out of a

hospital’s decision not “to offer a cane to a patient who has

trouble walking,” Horsley v. Halifax Reg’l Med. Ctr., Inc., 725

S.E.2d    420,       422    (N.C.      Ct.     App.     2012);      a    hospital’s        alleged

failure       “to    raise       the    bed     rails    on    [a       patient’s]        bed”    or

“instruct       her       to     use    the     bedside       call       button      to     obtain

                                                 18
assistance in going to the bathroom,” Norris, 205 S.E.2d at 348;

or     a     nursing     home’s        alleged       failure        to     “observ[e]        and

supervis[e] . . . [a resident] . . . smok[ing] in [a] designated

smoking area” to prevent her from burning herself, Taylor v.

Vencor,      Inc.,     525     S.E.2d    201,       203   (N.C.     Ct.    App.     2000).    In

short, the allegations in the complaint quoted in this paragraph

did    not    arise     “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,”        where

“professional services” means “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.”       Lewis     v.    Setty,     503       S.E.2d    673,     674

(N.C.App.      1998)     (emphasis,          citations,     and     internal       quotations

omitted). 1


       1
       In Lewis, the court held that damages claims based on the
negligent movement of a patient from an examination table to a
wheelchair in a physician’s office did not sound in medical
malpractice. The court explained its holding as follows, in
part:

     In this case, 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.
     It thus follows that the alleged negligent acts of the
     defendant do not fall into the realm of professional
     medical services. Any negligence which may have
(Continued)
                                               19
       That       the    pleading   also    asserts       facts    giving   rise   to     a

medical         malpractice      claim   does     not    warrant   dismissal     of     the

entire complaint for failure to comply with Rule 9(j) of the

North Carolina Rules of Civil Procedure. Rule 8 of the Federal

Rules of Civil Procedure, which, under the fulsome progeny of

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), governs pleading

in this federal action, 2 permits a party to “set out 2 or more

statements of a claim,” and “as many separate claims . . . as it

has, regardless of consistency.” Fed. R. Civ. P. 8(d). Moreover,

“[p]leadings must be construed so as to do justice,” Fed. R.

Civ.       P.    8(e),     and   “[a]n     overly       restrictive    reading     of    a

complaint         is     inconsistent      with     th[is]    mandate,”     Starks       v.




       occurred when the defendant and Ms. Norris attempted
       to move the plaintiff from the examination table back
       to his wheelchair falls squarely within the parameters
       of ordinary negligence. See Angela Holder, Medical
       Malpractice Law 175 (1975) (actions involving falls
       from beds or examining tables, equipment failures, or
       other types of accidents in a doctor’s office differ
       from medical malpractice actions because they do not
       involve negligent treatment).

Lewis, 503 S.E.2d at 674. This reasoning from a reported,
precedential  opinion  of   the  North  Carolina  intermediate
appellate court should count for more than Deal v. Frye Reg’l
Med. Ctr., Inc., 691 S.E.2d 132 (table), 2010 WL 522727 (N.C.
Ct. App. Feb. 16, 2010), on which the majority inexplicably
relies.
       2
       Thus, the majority’s assertion that “North Carolina law
leaves no room for pleading in the alternative under the facts
of this case,” ante, at 12, misses the mark by a wide margin.


                                             20
Perloff Bros., Inc., 760 F.2d 52, 55 (3d Cir. 1985). Because the

complaint    in   this    case    can     be   construed     (indeed,   it   is

impossible to construe it any other way) to allege a claim of

ordinary    negligence,    we    should      reverse   the   district   court’s

order dismissing the complaint and remand this case for further

proceedings.




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