              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-667

                                Filed: 15 March 2016

Alamance County, No. 14 CVS 19630

LINDA M. BENNETT, as Executrix for ELIZABETH H. MAYNARD, Deceased, pro
se, Personally on behalf of herself and all others similarly situated, Plaintiff,

              v.

HOSPICE & PALLIATIVE CARE CENTER OF ALAMANCE-CASWELL,
COMMUNITY HOME CARE AND HOSPICE, LLC, THE OAKS OF ALAMANCE,
LLC, JEFFREY BROWN, M.D., BETH HODGES, M.D., DOES 1-10, INCLUSIVE,
Defendants.


      Appeal by Plaintiff from order entered 26 January 2015 by Judge W. Osmond

Smith, III, in Alamance County Superior Court. Heard in the Court of Appeals 30

November 2015.


      Linda M. Bennett, as Executrix of the Estate of Elizabeth H. Maynard, on her
      own behalf, and on behalf of all others similarly situated, pro se.

      Young Moore and Henderson, P.A., by Elizabeth P. McCullough and Nathan
      D. Childs, Davis and Hamrick, L.L.P., by Ann C. Rowe and H. Lee Davis, Jr.,
      Yates, McLamb & Weyher, LLP, by Barry S. Cobb and Kelly A. Brewer, and
      Carruthers & Roth, PA, by Norman F. Klick, Jr., for the Defendant-Appellees.


      DILLON, Judge.


      Linda M. Bennett (“Plaintiff”), on behalf of her mother’s estate, herself, and all

others similarly situated, appeals from the trial court’s order dismissing claims

arising out of her mother’s death. For the following reasons, we affirm in part and

reverse in part.
        BENNETT V. HOSPICE & PALLIATIVE CARE CTR. OF ALAMANCE-CASWELL

                                   Opinion of the Court



                                     I. Background

      On 15 October 2014, Plaintiff filed a complaint against Defendants alleging

various claims against them arising out of the circumstances surrounding the death

of her mother, Elizabeth H. Maynard. The allegations in the complaint aver that Ms.

Maynard had been living at a facility operated by Defendant Oaks of Alamance when

she suffered a fall. She sustained injuries, but Plaintiff’s sister, Pamela Roney,

refused to authorize treatment for these injuries.         Thereafter, Ms. Maynard’s

condition deteriorated, culminating eventually in her demise.

      Defendants all moved the trial court to dismiss Plaintiff’s claims. The matter

came on for a hearing in Alamance County Superior Court. The trial court entered

an order dismissing all of Plaintiff’s claims for failure to comply with Rule 9(j) of the

North Carolina Rules of Civil Procedure, applicable to medical malpractice actions.

Specifically, the trial court concluded that all of her claims comprised “a medical

malpractice action” and that the common law doctrine of res ipsa loquitur was

inapplicable. Defendant entered written notice of appeal.

                                      II. Analysis

      Plaintiff essentially argues on appeal that Rule 9(j) of the North Carolina Rules

of Civil Procedure is inapplicable to her claims, contending that her claims are not

claims for “medical malpractice.” We believe that most of her claims fall within the

ambit of Rule 9(j) and, therefore, affirm the trial court’s dismissal as to those claims.



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                                   Opinion of the Court



However, some of Plaintiff’s claims stem from actions of some of Defendants which

occurred after the death of Ms. Maynard and otherwise do not fall within the ambit

of Rule 9(j). Accordingly, we reverse the trial court’s Rule 9(j) dismissal as to those

claims.

      Plaintiff did not attach a Rule 9(j) certification to her pro se complaint.

Notwithstanding, Plaintiff “labeled” her claims in the complaint as follows:

              (1)    Wrongful Death (including Loss of Chance);

              (2)    Medical Negligence/Medical Malpractice (including
                     Loss of Chance);

              (3)    Negligence and/or Gross Negligence and/or Willful
                     and Wanton conduct;

              (4)    Loss of Sepulcher;

              (5)    Breach of Contract, including Failure to provide
                     bereavement benefits as contractually required;

              (6)    Breach of Fiduciary Duty;

              (7)    Bad Faith Failure to turn over requested documents
                     and to provide information per statutory
                     requirements;

              (8)    Elder Abuse, and/or, Conspiracy to Commit Elder
                     Abuse, and/or Failure to report Elder Abuse as
                     required by North Carolina Statute;

              (9)    Emotional Distress and Suffering of the Decedent’s
                     Survivors;

              (10)   Pain and suffering of the Decedent;



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                                  Opinion of the Court



             (11)   Conspiracy and/or Collusion with the above.

Plaintiff lists these eleven (11) claims at the beginning of her complaint and then

proceeds to make a number of general allegations. The complaint is otherwise not

well organized. However, it is evident from those allegations that she seeks damages

(1) for certain acts of Defendants which occurred prior to her mother’s death and (2)

for certain acts of some of the Defendants which occurred after her mother’s death.

We address each category of claims separately below.

      Regarding the claims arising from Defendants’ acts occurring before the death

of Plaintiff’s mother, it appears that Plaintiff seeks damages due to the failure by

Defendants to provide adequate medical care for her mother once she sustained

injuries from her fall and/or the provision of certain medical treatment without

informed consent. We hold that the trial court correctly concluded that these claims

fell within the ambit of Rule 9(j); and, therefore, the trial court did not err in

dismissing these claims.

      Rule 9(j) states in relevant part as follows:

             Any complaint alleging medical malpractice by a health
             care provider . . . shall be dismissed unless . . . [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 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[.]



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        BENNETT V. HOSPICE & PALLIATIVE CARE CTR. OF ALAMANCE-CASWELL

                                    Opinion of the Court



N.C. Gen. Stat. § 1A-1, Rule 9(j) (2014). As our Supreme Court has observed, Rule

9(j) “prevent[s] frivolous malpractice claims by requiring expert review before filing

of the action.” Moore v. Proper, 366 N.C. 25, 31, 726 S.E.2d 812, 817 (2012) (emphasis

in original). Therefore, “a court must dismiss a complaint if it fails to meet the

[Rule’s] requirements.” In re Wooden ex rel. Jones v. Hillcrest Convalescent Ctr., Inc.,

222 N.C. App. 396, 402, 731 S.E.2d 500, 505 (2012).

      Each of the Defendants in the present case falls within the statutory definition

of health care provider. See Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 137,

472 S.E.2d 778, 781 (1996) (holding that “[a] medical malpractice action is any action

for damages for personal injury or death arising out of the furnishing of or failure to

furnish professional services by a health care provider as defined in [N.C. Gen. Stat.]

§ 90-21.11”). Specifically, sub-subdivision (a) of N.C. Gen. Stat. § 90-21.11 defines

“health care provider” to include those “who . . . [are] licensed[] or [] otherwise

registered or certified to engage in the practice of . . . medicine[.]” N.C. Gen. Stat.

§ 90-21.11(1)(a) (2012). The statute also includes hospitals, nursing homes, and adult

care homes in this definition, see id. § 90-21.11(1)(b), as well as those who are “legally

responsible for the negligence of,” or “act[] at the direction or under the supervision

of,” such health care providers, see id. § 90-21.11(1)(c)-(d).

      Each of the claims for acts which occurred prior to Plaintiff’s mother’s death

fits within the definition of “medical malpractice action,” as set out in subdivision (2)



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                                   Opinion of the Court



of the statute. Specifically, subdivision (2) provides:

             (2) Medical malpractice action. — Either of the following:

             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 . . . , or
             an adult care home . . . 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.

Id. § 90-21.11(2).

      Here, all of Plaintiff’s claims stemming from actions leading up to the death of

her mother concern the provision (or lack thereof) of health care to Plaintiff’s mother.

Plaintiff has not pleaded any facts which suggest that res ipsa loquitur applies.

Accordingly, we hold that the trial court did not err in dismissing these claims for

failure to include a certification pursuant to Rule 9(j).

      We are not persuaded by Plaintiff’s argument that Rule 9(j) does not apply

where no patient-physician relationship existed between Defendants and Plaintiff’s

mother, or, alternately, where Defendants were not furnishing professional health

care services to her mother. As demonstrated by the language of N.C. Gen. Stat. § 90-

21.11 and our Supreme Court’s holding in Horton, the definition of medical



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                                          Opinion of the Court



malpractice under North Carolina law is not so restrictive, encompassing “action[s]

for damages for . . . death arising out of the furnishing of or failure to furnish

professional services by a health care provider,” see 344 N.C. at 137, 472 S.E.2d at

781, including the provision of such services by nursing homes, adult care homes, and

those “legally responsible for the negligence of,” or who “act[] at the direction or under

the supervision of,” these nursing homes and adult care homes, see N.C. Gen. Stat.

§ 90-21.11(1)(a)-(d) (2012).           Furthermore, taking the allegations in Plaintiff’s

complaint as true, as we are required to do, see Acosta v. Byrum, 180 N.C. App. 562,

566, 638 S.E.2d 246, 250 (2006), Defendants were, indeed, furnishing professional

health care services to her mother at the time she died, Plaintiff’s arguments on

appeal to the contrary notwithstanding. Therefore, we hold that the claims alleged

in Plaintiff’s complaint for certain acts of Defendants which occurred prior to her

mother’s death are medical malpractice claims. Accordingly, the trial court did not

err in granting Defendants’ motions to dismiss where Plaintiff failed to include the

required certification under Rule 9(j) of the Rules of Civil Procedure.1




        1Plaintiff  also seeks to raise several arguments not raised below for the first time on appeal,
contending, for example, that Ms. Maynard’s informed consent was ineffective. However, our Court
has recently held that “[c]laims based on lack of informed consent are medical malpractice claims
requiring expert testimony and [] must comply with the requirements of Rule 9(j).” Kearney v. Bolling,
___ N.C. App. ___, ___, 774 S.E.2d 841, 850 (2015). Moreover, issues or theories of a case not raised at
the trial level will not be entertained for the first time on appeal. See, e.g., Westminster Homes, Inc. v.
Town of Cary Zoning Bd. of Adjustment, 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001). Therefore, we
do not reach these remaining arguments.

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                                        Opinion of the Court



       However, turning to Plaintiff’s claims arising from actions by some of the

Defendants after the death of her mother, it appears that Plaintiff is claiming

damages due to (1) the negligence by some of the Defendants in handling her mother’s

body (“Loss of Sepulcher”) and (2) the breach of contract by Defendant Hospice for

failing to provide to her certain bereavement services. We hold that these claims do

not fall within the ambit of Rule 9(j). Specifically, neither the claim based on the

mishandling of Ms. Maynard’s body after her death, nor the breach of contract claim

for failure to provide bereavement services, involves the provision of medical care

under N.C. Gen. Stat. § 90-21.11. Accordingly, we hold that the trial court erred in

dismissing these claims for failure to include a Rule 9(j) certification.2

       AFFIRMED IN PART, REVERSED IN PART.

       Chief Judge McGEE and Judge DAVIS concur.




       2 Whether the complaint otherwise contains sufficient allegations to state claims for the post-
death actions by some of the Defendants is not before us on appeal.

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