Bennett v. Hospice & Palliative Care Center of Alamance Caswell
783 S.E.2d 260
N.C. Ct. App.2016Background
- Plaintiff Linda M. Bennett, executrix for Elizabeth Maynard’s estate, sued multiple defendants after Maynard fell while living at The Oaks of Alamance and later died; complaint alleged 11 claims (including wrongful death, medical malpractice, negligence, loss of sepulcher, breach of contract, breach of fiduciary duty, elder abuse, emotional distress).
- Defendants moved to dismiss for failure to comply with Rule 9(j) (statutory certification in medical malpractice cases); Plaintiff filed pro se and did not attach a Rule 9(j) expert certification.
- The trial court dismissed all claims as medical malpractice claims subject to Rule 9(j), and rejected application of res ipsa loquitur; Plaintiff appealed.
- The Court of Appeals evaluated which allegations arose from pre-death medical care (treatment/consent issues) versus post-death conduct (handling of the body, bereavement services).
- Court held pre-death allegations were medical-malpractice claims under N.C. Gen. Stat. § 90-21.11 and Rule 9(j) applied; dismissal of those claims for lack of Rule 9(j) certification was affirmed.
- Court held post-death claims (loss of sepulcher, breach of contract re: bereavement services) did not involve furnishing medical care and therefore were not subject to Rule 9(j); dismissal of those claims was reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 9(j) applies to pre-death claims (alleged inadequate care and lack of informed consent) | Rule 9(j) does not apply because claims are not "medical malpractice" or no patient–physician relationship existed | Claims arise from furnishing (or failure to furnish) professional health care; defendants fit statutory definition of health care providers | Rule 9(j) applies; pre-death claims are medical malpractice and dismissal for lack of certification was proper |
| Whether res ipsa loquitur saves the complaint from Rule 9(j) | Res ipsa loquitur should apply to avoid expert certification requirement | Res ipsa loquitur does not apply to these allegations | Res ipsa loquitur not applicable; does not avoid Rule 9(j) requirement |
| Whether post-death claims (loss of sepulcher — mishandling of the body) are medical malpractice | Rule 9(j) not applicable because conduct occurred after death and did not involve medical care | Such acts are outside the scope of § 90-21.11 and not medical care | Not medical-malpractice claims; Rule 9(j) does not apply; dismissal reversed |
| Whether breach of contract claim for bereavement services falls under Rule 9(j) | Bereavement-services breach is a contractual, non-medical claim | Contract claim is independent of medical care and outside § 90-21.11 | Not a medical-malpractice claim; Rule 9(j) does not apply; dismissal reversed |
Key Cases Cited
- Moore v. Proper, 366 N.C. 25 (2012) (Rule 9(j) prevents frivolous malpractice claims by requiring pre-filing expert review)
- Horton v. Carolina Medicorp, Inc., 344 N.C. 133 (1996) (definition of medical malpractice action under § 90-21.11 encompasses claims arising from furnishing or failing to furnish professional services)
- In re Wooden ex rel. Jones v. Hillcrest Convalescent Ctr., Inc., 222 N.C. App. 396 (2012) (court must dismiss complaints that fail to meet Rule 9(j) requirements)
- Acosta v. Byrum, 180 N.C. App. 562 (2006) (appellate review takes complaint allegations as true for procedural-dismissal analysis)