Locklear v. CummingsÂ, 2017 N.C. App. LEXIS 367

Plaintiff filed suit on July 30, 2015 (one day before the statute of limitations ran) claiming injuries when she fell off the operating table during cardiovascular surgery on July 31, 2012.
Complaint alleged Dr. Matthew Cummings and associated Duke entities negligently failed to monitor/position Plaintiff during surgery; claimed concussion, double vision, jaw injury, bruising, and ongoing psychological effects.
Plaintiff served Duke Defendants (Sept. 9, 2015) and Dr. Cummings (Sept. 19, 2015); attempted service on Southeastern by private process server delivering papers to the hospital CFO (Sept. 24, 2015).
Defendants moved to dismiss under Rule 12(b)(6), Rule 9(j) (medical-malpractice certification), and Southeastern moved under Rule 12(b)(5) (insufficient service).
Trial court dismissed claims against Dr. Cummings and Duke Defendants for failure to comply with Rule 9(j) and dismissed claims against Southeastern for both Rule 9(j) and insufficient service; plaintiff appealed.
The Court of Appeals reversed dismissal as to Dr. Cummings and Duke (holding the complaint alleged ordinary negligence, not medical malpractice), and affirmed dismissal as to Southeastern for improper service of process.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the complaint alleged medical malpractice requiring Rule 9(j) certification	Locklear argued her claim did not require Rule 9(j) (or at least court should not dismiss for lack of cert.)	Defendants argued the pleading alleged professional medical services and thus required Rule 9(j) certification	Court held the facts alleged (falling from an open patient on the table) sounded in ordinary negligence, so Rule 9(j) was not required; dismissal under 9(j)/12(b)(6) was error as to Duke and Cummings
Whether service on Southeastern by a private process server was sufficient under Rule 4	Locklear contended private process service was permissible (and filed an affidavit by the server)	Southeastern contended private service was not authorized and proper server must be sheriff or other duly authorized person under Rule 4	Court held private service was improper because statutory requirements for non-sheriff service were not met; affirmed dismissal under Rule 12(b)(5)

Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396 (standard of review for Rule 12(b)(6)) (discussed standard of review)
Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238 (Rule 9(j) dismissal reviewed de novo)
New Hanover Cty. Child Support Enforcement ex rel. Beatty v. Greenfield, 219 N.C. App. 531 (Rule 12(b)(5) service reviewed de novo)
Sturgill v. Ashe Mem'l Hosp., Inc., 186 N.C. App. 624 (distinguishing malpractice from ordinary negligence where acts require clinical judgment)
Alston v. Granville Health Sys., 221 N.C. App. 416 (distinguishing falls requiring restraints—medical malpractice—from purely manual falls)
Thigpen v. Ngo, 355 N.C. 198 (Rule 9(j) certification requirement is mandatory)
Arnesen v. Rivers Edge Golf Club & Plantation, Inc., 368 N.C. 440 (when dismissal under Rule 12(b)(6) is appropriate)