              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1170

                                 Filed: 17 April 2018

Forsyth County, No. 17 CVS 763

ANGELA MESHELL BLUITT, Plaintiff,

             v.

WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, WAKE FOREST
UNIVERSITY, NORTH CAROLINA BAPTIST HOSPITAL and EVAN RUBERY,
MD, Defendants.


      Appeal by plaintiff from order entered 1 June 2017 by Judge Richard S.

Gottlieb in Forsyth County Superior Court.          Heard in the Court of Appeals

21 March 2017.


      The Law Office of Java O. Warren, by Java O. Warren, and Christopher Allen
      White Law, by Christopher Allen White, for plaintiff-appellant.

      Smith Moore Leatherwood LLP, by Kip D. Nelson, D. Clark Smith, Jr. and
      Joshua O. Harper, for defendants-appellees.


      ARROWOOD, Judge.


      Angela Meshell Bluitt (“plaintiff”) appeals from an order granting Wake Forest

University Baptist Medical Center, Wake Forest University, North Carolina Baptist

Hospital, and Evan Rubery, MD’s (“defendants”) motion to dismiss for failure to

comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. For the reasons

stated herein, we affirm the order of the trial court.

                                  I.     Background
              BLUITT V. WAKE FOREST UNIV. BAPTIST MEDICAL CENTER

                                   Opinion of the Court



      On 31 January 2017, plaintiff filed a complaint for medical negligence against

defendants, relying on the theory of res ipsa loquitur. The complaint alleged as

follows. On or about 31 January 2014, plaintiff underwent a cardiac ablation, a

surgery to remedy an irregular heartbeat, at Wake Forest University Baptist Medical

Center. Plaintiff received general anesthesia, rendering her unconscious during the

procedure. When plaintiff awoke after the surgery, she immediately “experienced

horrific and excruciating pain in her lower back.” Prior to being admitted for the

cardiac ablation, plaintiff had no back pain or injury, and she claims no personal

knowledge as to how, why, or when she sustained the injury to her back. On or about

24 February 2014, the injury on plaintiff’s lower back was diagnosed as a third-

degree burn. Due to the injury, plaintiff underwent a skin graft on 28 February 2014.

Based on these facts, plaintiff alleges that the negligence of defendants was the

proximate cause of the injury and damage to her person. The complaint did not allege

that plaintiff’s medical care had been reviewed by an expert prior to filing.

      On 7 April 2017, defendants filed a motion to dismiss for failure to comply with

Rule 9(j). Defendants filed a brief in support of their motion, and submitted four

affidavits from cardiac electrophysiologists to support their arguments that the

motion to dismiss should be granted because: (1) plaintiff’s complaint failed to allege

facts that establish negligence pursuant to res ipsa loquitur; (2) North Carolina rarely

applies res ipsa loquitur to medical malpractice claims; (3) plaintiff’s alleged injury



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                                   Opinion of the Court



was an inherent risk of the procedure she underwent; and (4) even if the burns were

not an inherent risk of the procedure, the average juror would require expert

testimony to determine whether defendants’ conduct fell below the applicable

standard of care.    In response, plaintiff submitted a brief opposing defendants’

motion, photographs of plaintiff’s back following the 31 January 2014 surgery, and

affidavits from plaintiff and two of her family members.

      On 30 May 2017, defendants’ motion came on for hearing in Forsyth County

Superior Court, the Honorable Richard S. Gottlieb presiding. On 1 June 2017, Judge

Gottlieb granted defendants’ motion, ruling that plaintiff’s complaint failed to comply

with Rule 9(j) of the North Carolina Rules of Civil Procedure.

      Plaintiff appeals.

                                   II.    Discussion

      On appeal, plaintiff argues that the trial court erred by granting defendants’

motion to dismiss pursuant to Rule 9(j) of the North Carolina Rules of Civil

Procedure.   Specifically, plaintiff argues the trial court converted the motion to

dismiss into a motion for summary judgment by considering defendants’ expert

affidavits, and erred by impermissibly applying Rule 9(j)(1) and (2)’s certification

requirements to her Rule 9(j)(3) claim, and, in so doing, failed to treat the complaint’s

allegations as true. We disagree and affirm the trial court’s dismissal of plaintiff’s

complaint.



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                                   Opinion of the Court



      We review the trial court’s dismissal pursuant to Rule 12(b)(6) of the North

Carolina Rules of Civil Procedure de novo. Alston v. Hueske, 244 N.C. App. 546, 548,

781 S.E.2d 305, 308 (2016) (citation omitted).            “In medical malpractice actions,

complaints must meet a higher standard than generally required to survive a motion

to dismiss[,]” in that they must also meet the requirements of Rule 9(j). Id. at 551-

52, 781 S.E.2d at 309 (citation omitted). “[W]hen ruling on [a motion to dismiss

pursuant to Rule 9(j)], a court must consider the facts relevant to Rule 9(j) and apply

the law to them.” McGuire v. Riedle, 190 N.C. App. 785, 787, 661 S.E.2d 754, 757

(2008) (quoting Phillips v. A Triangle Women’s Health Clinic, 155 N.C. App. 372, 376,

573 S.E.2d 600, 603 (2002)). “[A] trial court’s order dismissing a complaint pursuant

to Rule 9(j) is reviewed de novo on appeal because it is a question of law.” Alston, 244

N.C. App. at 549, 781 S.E.2d at 308 (internal quotation marks and citation omitted).

      Rule 9(j) states:

             Medical malpractice. - Any complaint alleging medical
             malpractice by a health care provider pursuant to G.S. 90-
             21.11(2)a. in failing to comply with the applicable standard
             of care under G.S. 90-21.12 shall be dismissed unless:

             (1) The pleading specifically asserts that the medical care
                 and all medical records pertaining to the alleged
                 negligence that are available to the plaintiff after
                 reasonable inquiry have been reviewed by a person who
                 is reasonably expected to qualify as an expert witness
                 under 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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                                  Opinion of the Court



             (2) The pleading specifically asserts that the medical care
                 and all medical records pertaining to the alleged
                 negligence that are available to the plaintiff after
                 reasonable inquiry have been reviewed by a person that
                 the complainant will seek to have qualified as an expert
                 witness by motion under Rule 702(e) of the Rules of
                 Evidence and who is willing to testify that the medical
                 care did not comply with the applicable standard of
                 care, and the motion is filed with the complaint; or

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

N.C. Gen. Stat. § 1A-1, Rule 9(j) (2017).

      Res ipsa loquitur applies when (1) direct proof of the cause of an injury is

unavailable, (2) defendant controlled the instrumentality involved in the accident,

and (3) “the injury is of a type that does not ordinarily occur in the absence of some

negligent act or omission.” Grigg v. Lester, 102 N.C. App. 332, 333, 401 S.E.2d 657,

657-58 (1991) (citations omitted). “The certification requirements of Rule 9(j) apply

only to medical malpractice cases where the plaintiff seeks to prove that the

defendant’s conduct breached the requisite standard of care—not to res ipsa loquitur

claims.” Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 103 (2002) (citation

omitted). A plaintiff alleging res ipsa loquitur must show that the injury resulted

from defendant’s negligent act, and also “must be able to show—without the

assistance of expert testimony—that the injury was of a type not typically occurring




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                                   Opinion of the Court



in [the] absence of some negligence by defendant.” McGuire, 190 N.C. App. at 789,

661 S.E.2d at 758 (internal quotation marks, brackets, and citation omitted).

      We first address plaintiff’s argument that the trial court applied the incorrect

standard of review because its consideration of defendants’ experts’ affidavits

converted the motion to dismiss into a motion for summary judgment. Our Court has

previously addressed this argument, explaining that although “a motion to dismiss

under Rule 12(b)(6) may be converted to a motion for summary judgment in” a

situation where matters outside the pleadings are received and considered in ruling

on a Rule 12(b)(6) motion to dismiss, when a court rules on “a motion to dismiss

pursuant to Rule 9(j), a court must consider the facts relevant to Rule 9(j) and apply

the law to them.” McGuire, 190 N.C. App. at 787, 661 S.E.2d at 757 (internal

quotation marks, brackets, and citations omitted).        Accordingly, a trial court’s

consideration of affidavits related to its Rule 9(j) ruling does not convert a motion to

dismiss into a motion for summary judgment. See id. at 787, 661 S.E.2d at 757. Thus,

the trial court did not err by failing to convert the motion into a summary judgment

motion.

      Next, plaintiff contends that the trial court allowed defendants to use the Rule

9(j)(1) and (2) certification requirements to obtain a dismissal of her complaint, even

though she pleaded a claim pursuant to Rule 9(j)(3), which she claims stripped her of

the right to have her complaint’s allegations treated as true pursuant to Rule 12(b)(6).



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                                    Opinion of the Court



We disagree. Plaintiff’s complaint failed to allege facts establishing negligence under

the doctrine of res ipsa loquitur pursuant to Rule 9(j)(3); thus, the trial court correctly

dismissed the complaint pursuant to Rule 9(j).

      Our Court has “consistently found that ‘res ipsa loquitur is inappropriate in

the usual medical malpractice case, where the question of injury and the facts in

evidence are peculiarly in the province of expert opinion.’ ” Robinson v. Duke Univ.

Health Sys., Inc., 229 N.C. App. 215, 225, 747 S.E.2d 321, 329 (2013) (quoting Bowlin

v. Duke Univ., 108 N.C. App. 145, 149-50, 423 S.E.2d 320, 323 (1992)) (citation

omitted).    Nonetheless, res ipsa loquitur claims are appropriate in medical

malpractice cases where:

             [t]he common knowledge, experience and sense of laymen
             qualifies them to conclude that some medical injuries are
             not likely to occur if proper care and skill is used; included,
             inter alia, are injuries resulting from surgical instruments
             or other foreign objects left in the body following surgery
             and injuries to a part of the patient’s anatomy outside of
             the surgical field.

Id. at 225, 747 S.E.2d at 331 (quoting Grigg, 102 N.C. App. at 335, 401 S.E.2d at 659).

We have applied this doctrine in a somewhat restrictive manner, as our Supreme

Court has recognized that:

             the majority of medical treatment involves inherent risks
             which even adherence to the appropriate standard of care
             cannot eliminate. This, coupled with the scientific and
             technical nature of medical treatment, renders the average
             juror unfit to determine whether [a] plaintiff’s injury would
             rarely occur in the absence of negligence. Unless the jury


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                                  Opinion of the Court



            is able to make such a determination[, a] plaintiff clearly is
            not entitled to the inference of negligence res ipsa [loquitur]
            affords.

Id. at 225-26, 747 S.E.2d at 329-30 (quoting Schaffner v. Cumberland County Hosp.

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

      In accordance with this principle, our Court will affirm the dismissal of medical

negligence complaints based on the res ipsa loquitur doctrine where both the

standard of care and its breach must be established by expert testimony. See, e.g.,

Hayes v. Peters, 184 N.C. App. 285, 288, 645 S.E.2d 846, 848 (2007) (holding that

expert testimony was necessary for the average juror to determine whether a stroke

from air emboli during an esophagastroduodenoscopy surgical procedure was an

injury that would not normally occur in the absence of negligence); Howie v. Walsh,

168 N.C. App. 694, 698-99, 609 S.E.2d 249, 252 (2005) (holding that expert testimony

was necessary for the average juror to determine whether the defendant dentist used

excessive or improper force when plaintiff’s jaw broke during a wisdom tooth

extraction); Grigg, 102 N.C. App. at 335, 401 S.E.2d at 659 (holding that expert

testimony was necessary for the average juror to determine whether the force exerted

by the defendant obstetrician during a cesarean section was improper or excessive).

      Here, plaintiff’s cause of action for medical malpractice is premised on the

assertion that defendants negligently burned her back while performing a cardiac

ablation. She contends that her complaint meets the pleading requirements for a res



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                                   Opinion of the Court



ipsa loquitur claim, while defendants contend that res ipsa loquitur cannot apply as

a matter of law to the facts alleged because expert testimony is required for a

layperson to evaluate the facts at issue. Defendants support their position with four

affidavits from specialists in the field who explain the procedures involved in a

cardiac ablation, and that burns to the back, such as the one plaintiff suffered, are an

unforeseeable, inherent risk of a cardiac ablation, and can occur without negligence

on the part of the physician performing the procedure.

      We agree with defendants that the facts alleged in the complaint necessarily

defeat a res ipsa loquitur claim. The procedures involved in a cardiac ablation, which

is a complex medical procedure, are outside of common knowledge, experience, and

sense of a layperson; thus, without expert testimony, a layperson would lack a basis

upon which to make a determination as to whether plaintiff’s back injury was an

injury that would not normally occur in the absence of negligence, or was an inherent

risk of a cardiac ablation. When a plaintiff claiming medical negligence would not be

able to show that the injury was of a type not typically occurring in the absence of

some negligence by a defendant without the use of expert testimony, as here, res ipsa

loquitur claims are inappropriate. McGuire, 190 N.C. App. at 789, 661 S.E.2d at 758

(internal quotation marks and citation omitted).

      Based on the facts in the record related to Rule 9(j), it is clear that plaintiff

would not be able to prove her claim without the use of expert testimony. Therefore,



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                                 Opinion of the Court



plaintiff’s complaint did not meet the requirements of Rule 9(j).   Accordingly,

dismissal pursuant to Rule 9(j) was proper.

      AFFIRMED.

      Judges STROUD and DAVIS concur.




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