An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                  NO. COA14-136

                      NORTH CAROLINA COURT OF APPEALS

                             Filed: 5 August 2014


WANDA WRIGHT AND JAMES WRIGHT,
     Plaintiffs,

      v.                                    New Hanover County
                                            No. 11 CVS 4080
ATLANTIC ORTHOPEDICS, P.A., AND
NEW HANOVER REGIONAL MEDICAL
CENTER,
     Defendants.


      Appeal by plaintiffs from order entered 22 August 2013 by

Judge W. Allen Cobb, Jr., in New Hanover County Superior Court.

Heard in the Court of Appeals 4 June 2014.


      The Mitchell Law Group, by Ronnie M. Mitchell, and The Law
      Offices of William S. Britt, by William S. Britt, for
      plaintiff-appellants.

      Walker, Allen, Grice, Ammons & Foy, L.L.P., by Jerry A.
      Allen, Jr., and Louis (Trey) F. Foy, III, for defendant-
      appellees.


      BRYANT, Judge.
                                            -2-
       Where discovery reveals that a claim for medical negligence

is not supported by the facts, a dismissal of the claim pursuant

to Rule 9(j) is appropriate.

       On 16 April 2009, plaintiff Wanda Wright underwent a total

knee    arthroplasty      in    her    left       knee.       The    arthroplasty       was

performed   by     Dr.   Walter       W.    Frueh,     an    orthopedic       surgeon    at

Atlantic Orthopedics, and the operation was conducted at New

Hanover    Regional      Medical       Center.       Although        the   surgery      was

successful, a six-inch skin laceration was noted above Wright’s

left ankle when her surgical drapes were removed.                             Wright was

subsequently       referred      to     a    plastic        surgeon    for     the     skin

laceration.        On    21    April,       Wright     was    discharged       from     the

hospital with instructions to continue rehabilitation and skin

care services following her knee surgery and laceration.                             On 28

April, the plastic surgeon removed the sutures from Wright’s

skin laceration.

       On 30 September 2011, Wright and her husband, plaintiff

James Wright, filed a complaint against defendants Dr. Frueh,

Atlantic Orthopedics, and New Hanover Regional Medical Center.

The    complaint    alleged      the       following      claims     brought    by     Mrs.

Wright:    negligence      against          Dr.   Frueh      for    causing    the     skin

laceration;      claims        against       Atlantic        Orthopedics       based     on
                                   -3-
respondeat superior for the negligence of its physician, Dr.

Frueh; and claims against New Hanover Regional Medical Center

based on respondeat superior for the negligence of its employees

and staff in causing the skin laceration.          A claim for loss of

consortium was brought by Mr. Wright.

      On 26 July 2011, Atlantic Orthopedics filed a motion for

summary judgment pursuant to Rule 56, and a motion to dismiss

pursuant to, inter alia, Rule 9(j).       Thereafter, plaintiffs took

a voluntary dismissal without prejudice as to defendants Dr.

Frueh and New Hanover Regional Medical Center.         Plaintiffs also

made a motion to amend the pleadings to conform to the evidence.

      On 22 August, the trial court granted Atlantic Orthopedics’

motion to dismiss plaintiffs’ complaint for failure to comply

with the requirements of Rule 9(j); no formal ruling was made as

to   plaintiffs’   motion   to   amend   the   pleadings.   Plaintiffs

appeal.

                    _________________________________

      In their sole issue on appeal, plaintiffs contend the trial

court erred in dismissing their complaint pursuant to Rule 9(j).

We disagree.

                Rule 9(j) unambiguously requires a
           trial court to dismiss a complaint if the
           complaint's allegations do not facially
           comply with the rule's heightened pleading
                                   -4-
          requirements.   Additionally, this Court has
          determined   that   even   when  a  complaint
          facially   complies    with   Rule  9(j)   by
          including a statement pursuant to Rule 9(j),
          if discovery subsequently establishes that
          the statement is not supported by the facts,
          then dismissal is likewise appropriate.    In
          considering whether a plaintiff's Rule 9(j)
          statement is supported by the facts, a court
          must consider the facts relevant to Rule
          9(j) and apply the law to them.    In such a
          case, this Court does not inquire as to
          whether there was any question of material
          fact, nor do we view the evidence in the
          light most favorable to the plaintiff.
          Rather, our review of Rule 9(j) compliance
          is de novo, because such compliance clearly
          presents a question of law . . . .

Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App.

238,   255—56,    677   S.E.2d    465,      477   (2009)   (citations    and

quotations omitted).     Rule 9(j) “does not provide a procedural

mechanism by which a defendant may file a motion to dismiss a

plaintiff's   complaint.”        Id.   at    255,   677    S.E.2d   at   477.

However, “[t]he Rules of Civil Procedure provide other methods

by which a defendant may file a motion alleging a violation of

Rule 9(j).”      Id.; see also Thigpen v. Ngo, 355 N.C. 198, 200,

558 S.E.2d 162, 164 (2002) (the trial court granted defendants'

"motions to dismiss pursuant to Rules 9(j) and 12(b)(6)"); Trapp

v. Maccioli, 129 N.C. App. 237, 239, 497 S.E.2d 708, 709 (the

defendant filed a motion to dismiss "pursuant to Rule 9(j)").
                                      -5-
    Plaintiffs       contend    the     trial    court   erred     in   granting

Atlantic    Orthopedics’     motion     to   dismiss     because    plaintiffs’

complaint    met     the     pleading     requirements      of     Rule    9(j).

Plaintiffs    gave     the     following        statement    of     Rule   9(j)

certification:

            Pursuant to Rule 9(j) of the North Carolina
            Rules of Civil Procedure and prior to the
            filing of this Complaint, the care and
            treatment of Plaintiff Wanda Wright by the
            Defendants has been reviewed by a person who
            is expected to qualify under Rule 702 of the
            North Carolina Rules of Civil Procedure, and
            who   is   willing  to   testify    that the
            Defendants’   care  and   treatment   of the
            Plaintiff    Wanda   Wright    breached  the
            appropriate standards of care, that they
            failed to use their best medical judgment
            and/or failed to use reasonable care and
            diligence applying their knowledge, training
            and skill to Plaintiff’s care, proximately
            resulting in injury and damage to the
            Plaintiff, Wanda Wright.

    Rule 9(j) of our Rules of Civil Procedure 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
                                        -6-
                  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;

                 (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)(1—3) (2013).

    We    agree    with    plaintiffs     that      the   statement      in   their

complaint   facially      meets   the    requirements       of   Rule    9(j),    as

plaintiffs have pleaded the elements required by Rule 9(j)(a).

However, a complaint may facially meet the requirements of Rule

9(j), yet may later fail Rule 9(j) based on discovery.

    In    its    order    granting      Atlantic    Orthopedics’        motion    to

dismiss   pursuant   to    Rule   9(j),       the   trial   court     noted      that

plaintiffs failed to comply with the requirements of Rule 9(j),

and “that the motion should be allowed based on the deposition
                                               -7-
testimony     of     the      plaintiffs’            expert    witness,          Dr.     Staley

Jackson[.]”

        Dr. Jackson, plaintiffs’ expert witness, testified during

his deposition that, in his opinion, Dr. Frueh had not “violated

any standards of care or was involved in any negligent acts.                                   I

did   not    feel    that     he    had    any       involvement       in       [plaintiff’s]

injury.”      Upon further questioning, Dr. Jackson stated that,

based   on   his     review    of    defendants’         deposition         testimony        and

plaintiff’s    medical        records,         the    only    person    who       was    likely

negligent     in     causing        plaintiff’s         skin     laceration            was   the

physician’s assistant who removed plaintiff’s surgical drapes.

       We agree with the trial court that plaintiffs have failed

to    meet   the    requirements          of    Rule     9(j),    as    the       deposition

testimony of plaintiffs’ expert witness, Dr. Jackson, clearly

indicates     that     he     did    not       feel     the    evidence          demonstrated

negligence on the part of Dr. Frueh or Atlantic Orthopedics.

Instead,     Dr.     Jackson’s        deposition         supported          a    finding     of

possible     negligence        only        against       Dr.     Frueh’s          physician’s

assistant.         Thus, as the deposition testimony of plaintiffs’

expert witness demonstrates that plaintiffs’ complaint was not

supported by the facts, a dismissal pursuant to Rule 9(j) was

appropriate.        See Robinson v. Duke Univ. Health Sys., ___ N.C.
                                            -8-
App.    ___,   ___,    747     S.E.2d      321,    328    (2013)      (“[E]ven        when   a

complaint      facially       complies      with     Rule      9(j)    by    including       a

statement      pursuant       to    Rule    9(j),    if     discovery        subsequently

establishes that the statement is not supported by the facts,

then dismissal is likewise appropriate.” (citing Barringer, 197

N.C. App. at 255, 677 S.E.2d at 477)).

       Plaintiffs      also    argue       that    because      an    affidavit       by   Dr.

Jackson was offered alongside the motion to amend the pleadings,

the trial court erred in dismissing the complaint under Rule

9(j).

       "[O]ur standard of review for motions to amend pleadings

requires a showing that the trial court abused its discretion."

Delta Envtl. Consultants of N.C., Inc. v. Wysong & Miles Co.,

132 N.C. App. 160, 165, 510 S.E.2d 690, 694 (1999) (citation

omitted).         "A   trial       court    abuses       its    discretion      when       its

decision is manifestly unsupported by reason or so arbitrary

that it could not have been the result of a reasoned decision."

Ehrenhaus v. Baker, 216 N.C. App. 59, 71, 717 S.E.2d 9, 18

(2011) (citations and quotation omitted), appeal dismissed and

disc.    review    denied,         366   N.C.     420,    735    S.E.2d      332   (2012).

Proper   reasons       for    denying      a    motion    to    amend       include    undue

delay, unfair prejudice, bad faith, futility of amendment, and
                                             -9-
repeated failure of the moving party to cure defects by other

amendments.      Delta, 132 N.C. App. at 166, 510 S.E.2d at 694.

       Here,    the    record     does       not    include        a     clear    ruling       on

plaintiffs’ motion to amend.                 Instead, the motion in the record

does not bear a file stamp, although the affidavit accompanying

the    motion    does     bear    a     filing          stamp     of    19     August       2013.

Nevertheless, based on the trial court’s dismissal of the case,

it seems clear that plaintiff’s motion to amend was not allowed.

Plaintiffs’ argument on appeal asserts the viability of a claim

based on an affidavit offered with a motion to amend.                                  However,

since plaintiffs do not argue on appeal the denial of the motion

to amend, plaintiffs’ argument is deemed abandoned.                              See N.C. R.

App. P 28(a) (2013) ("The scope of review on appeal is limited

to    issues    so    presented    in    the       several        briefs.        Issues      not

presented       and    discussed        in     a        party’s        brief     are    deemed

abandoned.").           Therefore,       we        do    not      consider       plaintiff’s

arguments regarding the contents of Dr. Jackson’s affidavit, and

make    no     determination      as     to    whether          the     contents       of    the

affidavit would suggest a medical negligence claim against Dr.

Frueh’s physician’s assistant based on any legal theory.

       Plaintiffs       further       contend       the     trial        court     erred      in

granting       Atlantic    Orthopedics’             motion        to     dismiss        because
                                            -10-
plaintiffs’ complaint is rooted in common-law negligence and res

ipsa loquitor and, therefore, the requirements of Rule 9(j) are

not applicable.           In pleading a claim for medical negligence, a

claim   may    satisfy       the     requirements      of    Rule    9   if    the    claim

“alleges      facts       establishing       negligence        under     the     existing

common-law     doctrine       of     [negligence       or]    res     ipsa     loquitur.”

N.C.G.S. § 1A-1, Rule 9(j)(3).

      Here,     plaintiffs          took     a     voluntary        dismissal        as   to

defendants Dr. Frueh and New Hanover Regional Medical Center.

In    the    complaint       against        Atlantic    Orthopedics,           plaintiffs

alleged only that: “All the acts and/or omissions of each of the

individual Defendant physicians were done within the course and

scope   of    their        agency     and    employment      for      these     corporate

Defendants and these corporate Defendants are negligent under

the   doctrine       of    respondeat       superior.”         This      allegation       by

plaintiffs      is        narrowly     tailored,       as     it     strictly        limits

plaintiffs’ claim of negligence against Atlantic Orthopedics to

that of      respondeat superior            for the acts of “the individual

Defendant physicians.”

      The evidence before the trial court indicated that only one

defendant physician, Dr. Frueh, performed any medical procedures

on plaintiff.         Indeed, plaintiffs’ complaint acknowledges that
                                         -11-
Dr. Frueh was the sole defendant physician, as Dr. Frueh is the

only physician listed in the complaint.                    Thus, plaintiffs’ claim

against Atlantic Orthopedics cannot be deemed to include a claim

for common-law negligence, as it is narrowly couched to address

only a claim of respondeat superior for the acts of Atlantic

Orthopedics’ physician, Dr. Frueh.

    Plaintiffs’ argument that the complaint raises a claim for

res ipsa loquitor is likewise without merit.                         A claim of res

ipsa loquitor in a medical malpractice claim is appropriate only

where   the   plaintiff’s        claim    allows          an    ordinary    person   to

determine from the facts presented that the plaintiff’s injury

was one that “does not happen in the ordinary course of things,

where proper care is exercised.”                 Robinson, ___ N.C. App. at

___, 747 S.E.2d at 330 (citations omitted).

    Here, plaintiffs’ complaint fails to raise even a hint of

res ipsa loquitor against Atlantic Orthopedics for, as discussed

previously,        plaintiffs’     complaint         is        strictly    limited   to

alleging only a claim of respondeat superior against Atlantic

Orthopedics’ physician.          We further note that because plaintiffs

took a voluntary dismissal as to Dr. Frueh, this has effectively

dismissed plaintiffs’ claim against Atlantic Orthopedics in its

entirety,     as     the   claim    based       on    respondeat          superior   is
                              -12-
specifically tied to the negligent acts of Atlantic Orthopedics’

physician, Dr. Frueh.

    Accordingly,   the   ruling   of   the   trial   court   granting

Atlantic Orthopedics’ motion to dismiss is affirmed.

    Affirmed.

    Judges CALABRIA and GEER concur.

    Report per Rule 30(e).
