Robinson v. Duke University Health Systems, Inc.
747 S.E.2d 321
N.C. Ct. App.
2013

Background

  • Linda Robinson underwent a subtotal/abdominal colectomy at Duke on March 12, 2008; Dr. Mantyh (attending) and Dr. Huang (resident) performed the surgery.
  • Post-op, Robinson passed stool vaginally; a reoperation on March 14 corrected a communication between small intestine and vagina. She later developed neurological/psychiatric symptoms and was diagnosed with conversion disorder.
  • Plaintiffs sued for medical negligence (filed March 10, 2011), relying on res ipsa loquitur and seeking punitive damages; defendants moved to dismiss and later for summary judgment. Plaintiffs identified Dr. Joshua Braveman as their expert.
  • A first judge denied dismissal under Rule 9(j), finding the complaint pleaded facts sufficient for res ipsa loquitur; a different judge later granted summary judgment, concluding res ipsa did not apply and Rule 9(j) noncompliance required dismissal.
  • The Court of Appeals held the second judge improperly overruled the first judge on the Rule 9(j) legal issue, vacated that part of the order, and found plaintiffs’ complaint and forecasted evidence do satisfy Rule 9(j)(3) (res ipsa) as to some defendants.
  • The court reversed summary judgment for Dr. Mantyh, Dr. Huang, and DUHS (remanding for further proceedings) but affirmed dismissal as to DUAP, Dr. Patel, Dr. Hodgins, and plaintiffs’ punitive-damages claim.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether a later summary-judgment ruling could reconsider an earlier judge’s legal determination on Rule 9(j) compliance Hobgood correctly found complaint alleges res ipsa and thus satisfies Rule 9(j)(3) Hudson improperly re-evaluated and reversed Hobgood’s legal ruling at summary judgment A judge may not overruling another judge on a pure question of law; vacated the 9(j)-based dismissal portion
Whether plaintiffs’ complaint and record satisfy Rule 9(j)(3) by alleging res ipsa loquitur Robinson’s anatomy/result (intestine attached to vagina; stool passing vaginally) is within common knowledge so res ipsa applies Res ipsa limited to two narrow medical scenarios or requires expert testimony; plaintiffs have direct proof of cause Res ipsa may apply beyond those two examples; laypersons can infer negligence here; complaint and forecast meet Rule 9(j)(3)
Whether plaintiffs forecasted sufficient expert evidence to establish standard of care and breach against Dr. Mantyh and Dr. Huang Dr. Braveman’s testimony/affidavit establishes applicable standard and breach; common-knowledge exception supports res ipsa and breach for Huang Braveman lacked familiarity with defendant’s community and testified to a national standard; his affidavit impermissibly contradicts deposition Dr. Braveman’s testimony and supplemental affidavit collectively satisfy §90-21.12; jury issues exist as to breach for Mantyh and Huang — summary judgment improper
Whether DUHS is vicariously liable for surgeons’ acts Hospital employed Dr. Huang and held out Dr. Mantyh on its website; apparent agency and vicarious liability theories apply DUHS argued no employment/agency relationship with Mantyh on the operative date Sufficient evidence of employment (Huang) and apparent agency (Mantyh) to survive summary judgment as to DUHS

Key Cases Cited

  • Forbis v. Neal, 361 N.C. 519 (N.C. 2007) (summary-judgment standard)
  • Crocker v. Roethling, 363 N.C. 140 (N.C. 2009) (trial court must view evidence favorably to nonmoving party)
  • Shore v. Brown, 324 N.C. 427 (N.C. 1989) (summary judgment may be affirmed if any ground supports it)
  • Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238 (N.C. Ct. App. 2009) (Rule 9(j) compliance reviewed de novo)
  • Rowell v. Bowling, 197 N.C. App. 691 (N.C. Ct. App. 2009) (res ipsa and Rule 9(j) analysis)
  • Bowlin v. Duke Univ., 108 N.C. App. 145 (N.C. Ct. App. 1993) (res ipsa rare in medical cases)
  • Diehl v. Koffer, 140 N.C. App. 375 (N.C. Ct. App. 2000) (res ipsa allows inference of negligence from physical cause)
  • Grigg v. Lester, 102 N.C. App. 332 (N.C. Ct. App. 1991) (res ipsa applicable to retained instruments and injuries outside surgical field)
  • Schaffner v. Cumberland County Hosp. Sys., 77 N.C. App. 689 (N.C. Ct. App. 1985) (caution in applying res ipsa to medical malpractice)
  • Parks v. Perry, 68 N.C. App. 202 (N.C. Ct. App. 1984) (hospital not insurer of results; two-part Parks test for uncommon injurious result)
  • Mitchell v. Saunders, 219 N.C. 178 (N.C. 1941) (res ipsa available where ordinary men can draw inferences)
  • Yorke v. Novant Health, Inc., 192 N.C. App. 340 (N.C. Ct. App. 2008) (res ipsa inapplicable where plaintiff has direct proof of cause)
  • Pitts v. Nash Day Hosp., Inc., 167 N.C. App. 194 (N.C. Ct. App. 2004) (community-vs-national-standard-of-care inquiry)
  • Grantham v. Crawford, 204 N.C. App. 115 (N.C. Ct. App. 2010) (expert may rely on research to learn about community standard)
  • Bailey v. Jones, 112 N.C. App. 380 (N.C. Ct. App. 1993) (common-knowledge exception to expert requirement)
  • Atkins v. Mortenson, 183 N.C. App. 625 (N.C. Ct. App. 2007) (elements of medical-malpractice claim)
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