Aline Joan IODICE; James Iodice; Mary J. Iodice, Plaintiffs-Appellants, v. UNITED STATES of America; Department of Veterans Affairs, an agency of the United States of America, Defendants-Appellees. Barbara Hansen, Administratrix of the Estate of Julie Marie Hansen, Plaintiff-Appellant, v. The Department of Veterans Affairs, Defendant-Appellee. R. Kenneth Babb, Ancillary Public Administrator of the Estate of Maia Cory Witzl, Plaintiff-Appellant, v. Department Of Veterans Affairs, Defendant-Appellee.
Nos. 01-1640, 01-1651 and 01-1654
United States Court of Appeals, Fourth Circuit
Decided May 2, 2002
289 F.3d 270
V.
Scott has requested this court to remand with orders to award benefits. Upon our review of the record, no substantial evidence can support a finding that Scott is not totally disabled. Additionally, there is no substantial evidence to dispute any causative contribution of pneumoconiosis to Scott‘s disability. Under these circumstances, an ALJ must find that Scott is totally disabled due to pneumoconiosis. Thus, we reverse the Board‘s order denying benefits and remand with an order to award benefits without further administrative proceedings because on this record, only one factual conclusion is possible establishing Scott‘s entitlement to benefits.
See Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 524 (4th Cir.1995); Barber v. Director, OWCP, 43 F.3d 899, 901 (4th Cir.1995); Adkins v. Director, OWCP, 958 F.2d 49, 52-53 (4th Cir.1992) (awarding benefits after resolving conflicts in medical evidence); see also Mancia v. Director, OWCP, 130 F.3d 579, 593-94 (3d Cir.1997).6
REVERSED AND REMANDED WITH INSTRUCTIONS.
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge WILKINS and Judge MICHAEL joined.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge.
On September 4, 1996, Richard Thomas Jones, when driving his car while severely impaired by alcohol and prescription drugs, crashed into a car carrying several college students. The accident seriously injured Aline Joan Iodice, and killed two other students, Julie Marie Hansen and Maia Cory Witzl. Iodice and the administrators of Hansen‘s and Witzl‘s estates (collectively “the students“) brought these consolidated actions, pursuant to the Federal Tort Claims Act,
I.
In reviewing a dismissal for failure to state a claim under
The VA included Jones in a “drug registry” of addicts that it maintained at its Asheville facility. Jones developed a “history of requesting and receiving early refills of his prescriptions,” and his wife urged VA employees to treat her husband for drug addiction and to limit his prescriptions. Nonetheless, the VA continued to prescribe narcotics to Jones and permitted him to receive prescription refills through the mail.
On three occasions, VA facilities admitted Jones as an inpatient for alcohol or alcohol and drug detoxification; the last admission began on August 3, 1996. During that admission, Jones was reported to be drunk and under the influence of narcotics, and to have left the campus twice to drink. Throughout the admission, Jones demonstrated effects of alcohol and narcotics abuse including belligerent behavior, an unsteady gait, slurred speech, and a strong odor of alcohol. Later in August, Jones left the inpatient program without completing detoxification.
On August 30, 1996, after Jones had ceased to be an inpatient, a VA doctor prescribed narcotics for Jones in doses even greater than his usual heavy dose. On September 3, 1996, a VA employee, either a doctor or a staff member, permitted Jones to refill his prescription early. The next evening, driving under the influence of alcohol and narcotics, Jones caused the fatal accident. In sum, the students allege that “veteran Jones was being prescribed excessive narcotic drugs and other medications which, at the time of the collision, impaired his ability and judgment, and proximately caused said collision, and resulting injuries and damages” to them.2
The students sued the United States, alleging that the accident was proximately and foreseeably caused by breaches of a number of duties that the VA purportedly owed to Jones and to the public. A magistrate judge recommended that the complaints be dismissed for failure to state a claim. Apparently concluding that all claims asserted in the complaints constituted claims of medical malpractice, the magistrate judge ruled that the complaints should be dismissed because North Carolina law does not “recognize a cause of action for medical malpractice brought by [unrelated third party] victims of a patient who commits the type of crimes committed by Jones in these cases.” The district court rejected the students’ timely objections, accepted the magistrate judge‘s recommendation, and dismissed all three cases. These appeals followed.
In this federal tort claims action, arising out of events occurring in North Carolina, the law of that state controls.
II.
By statute, North Carolina defines a “medical malpractice action” as “a civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider,” including a doctor, a pharmacist, or a hospital.
Nevertheless, the students insist that North Carolina law permits them, Jones‘s victims, to bring medical malpractice claims against Jones‘s health care providers. They rely on Pangburn v. Saad, 73 N.C.App. 336, 326 S.E.2d 365 (N.C.Ct.App.1985), and Mozingo v. Pitt County Memorial Hospital, 101 N.C.App. 578, 400 S.E.2d 747 (N.C.Ct.App.1991). Neither case assists them.
Pangburn simply holds that third party victims of a wrongly released mental patient may sue the patient‘s health care providers for negligent release. Pangburn, 326 S.E.2d at 367. A claim for negligent release is not a claim for medical malpractice. In Mozingo, although the North Carolina Court of Appeals did permit a plaintiff to pursue a medical malpractice claim against a doctor with whom he had no personal doctor-patient relationship, the plaintiff himself was a patient allegedly afforded inadequate medical care, not the victim of a patient afforded inadequate medical care. See Mozingo, 400 S.E.2d at 751-53; see also Webb v. Nash Hosps., Inc., 133 N.C.App. 636, 516 S.E.2d 191, 194 (N.C.Ct.App.1999) (considering, but finding no facts to support, a Mozingo claim in a suit by a patient).
Thus, the students have not cited, and we have not found, a single North Carolina case permitting unrelated third party victims of a patient to sue the patient‘s health care providers for medical malpractice, or even suggesting that such claims are possible.3 Instead, North Car-
For these reasons, the district court properly dismissed the students’ claims to the extent that the claims sound in medical malpractice.
III.
The students, however, maintain that contrary to the holding of the district court, not all of the claims alleged in their complaints sound in medical malpractice. They contend that North Carolina distinguishes between medical malpractice and ordinary negligence in the provision of health care. Moreover, they assert that they have alleged both kinds of claims in their complaints, and that state law permits them to bring ordinary negligence claims against Jones‘s health care providers, even if it does not allow them to bring medical malpractice claims.
A.
North Carolina does permit a proper plaintiff to bring ordinary negligence claims, in addition to medical malpractice claims, against a health care provider. By statute, North Carolina defines a medical malpractice action as one that “aris[es] out of the furnishing or failure to furnish professional services” by health care providers.
When bringing an ordinary negligence claim against a health care provider, a plaintiff need not assert in his complaint that the medical care has been reviewed by an expert who will testify that it did not comply with the applicable standard of care, as is required in medical malpractice actions. Id. Rather, courts apply “the reasonably prudent person” standard of care in assessing the sufficiency of a claim for “negligence on the part of the hospital for administrative or management deficiencies.” Id. Thus, in such ordinary negligence actions the “liability of the defendant [health care provider] to the plaintiff depends on whether the defendant owed a duty of care to the plaintiff, which duty was violated, proximately causing injury to the plaintiff.” Blanton v. Moses H. Cone Mem‘l Hosp. Inc., 319 N.C. 372, 354 S.E.2d 455, 457 (N.C.1987).
Review of the students’ amended complaints plainly reveals that they have alleged that VA employees owed them a duty of care in a number of these areas. For example, they allege that the VA owed them duties relating to the training, monitoring, and supervision of its staff, and had an “obligation to maintain appropriate policies and procedures to provide proper treatment of its patients, including those addicted to drugs and alcohol.” All three amended complaints also allege that in violation of its duty of care, the VA failed to promulgate adequate policies and procedures to regulate the dispensation of narcotics to drug-addicted patients, failed to follow existing policies and procedures to the same end, and failed to communicate with its staff on these issues.
Therefore, despite the contrary contentions of the United States and the conclusions of the district court, the students clearly do not assert only medical malpractice claims. They also seek to hold the VA liable in ordinary negligence.
B.
It is less clear whether North Carolina allows third parties who are victims of patients to pursue ordinary negligence claims against the patients’ health care providers, and if so, whether the students have adequately pled such a claim.
As with medical malpractice claims, the students have not cited, and we have not found, any case in which the North Carolina courts have permitted a third party victim of a patient to bring an ordinary negligence action against a hospital.4 Cf. Blanton, 354 S.E.2d 455 (suit by a patient); Waters, 547 S.E.2d at 143 (suit by a patient‘s estate); Taylor, 525 S.E.2d at 202 (same); Bost, 262 S.E.2d at 391 (same). Indeed, North Carolina courts have repeatedly discussed ordinary negligence claims against health care providers as involving a duty that “a hospital ... owes to its patients.” Blanton, 354 S.E.2d at 458; see also, e.g., Muse v. Charter Hosp. of Winston-Salem, Inc., 117 N.C.App. 468, 452 S.E.2d 589, 594 (N.C.Ct.App.1995); Burns v. Forsyth County Hosp. Auth. Inc., 81 N.C.App. 556, 344 S.E.2d 839, 845-46 (N.C.Ct.App.1986);
Moreover, in a major decision analyzing and specifically permitting suits against hospitals based on ordinary negligence, the Supreme Court of North Carolina repeatedly emphasized that this cause of action represents “no more than the application of common law principles of negligence.” Blanton, 354 S.E.2d at 457; see also id. at 459. This emphasis by the Supreme Court of North Carolina seems to direct courts to apply general principles of negligence in determining whether a plaintiff has alleged a claim of ordinary negligence against a health care provider.
Generally, North Carolina does permit suits by third parties for negligence under certain defined circumstances. Most significantly for the present case, in Hart v. Ivey, 332 N.C. 299, 420 S.E.2d 174 (N.C.1992), the Supreme Court of North Carolina considered “the liability of a social host who serves an alcoholic beverage to a person who then injures someone while operating an automobile while under the influence of an intoxicating beverage.” Id. at 177. The Hart court held that the third party victim of a drunk driver could sue a social host who served alcohol to the driver, if the host “knew or should have known” that the person served “was under the influence of alcohol [and] ... would shortly thereafter drive an automobile.” Id. at 178.
The decision of North Carolina‘s highest court in Hart is obviously instructive in the present case, also involving provision of an intoxicant to a driver.5 Although serving alcohol violates a state statute barring the provision of alcohol to persons under age 21, the Hart court expressly refused to base its decision on the statute. Id. at 176-77. Instead, the court relied on the common law duty of “every person who enters upon an active course of conduct ... to exercise ordinary care to protect others from harm,” and emphasized that its decision did not “recogniz[e] a new claim” but “appl[ied] established negligence principles.” Id. at 178 (internal quotation marks and citation omitted). This emphasis seems particularly significant here given the Supreme Court of North Carolina‘s similar directive in Blanton that claims against hospitals for negligence (other than medical malpractice) are to be based on and governed by general ordinary negligence principles. See 354 S.E.2d at 457; see also Pangburn, 326 S.E.2d at 367 (relying on ordinary principles of negligence to allow suit by a third party for negligent release of a mental patient).
To be sure, a hospital‘s legal position presents more complications than that of a social host. Having accepted Jones as a patient, the VA had an affirmative duty to him, see, e.g., Russell, 482 S.E.2d at 33, a duty potentially in tension with its duty to the public if the latter required the hospital to restrict Jones‘s access to pain killers. A social host, meanwhile, whatever advertisers may suggest, has no positive duty to serve alcohol to guests. But North Carolina courts have acknowledged similar concerns in other cases simply by limiting ordinary negligence claims in the health care setting, not by barring such claims
In the case at hand, however, we need not definitively determine whether the Supreme Court of North Carolina would permit a third party victim of a patient to bring a properly pled ordinary negligence action against the patient‘s medical care providers. This is so because, even if such a claim exists under North Carolina law, the students have not alleged the facts necessary to support such a claim.
Hart (and its progeny) provide the only potential basis in North Carolina law for the students’ claim that a third party victim can recover from a patient‘s medical provider for negligent provision of an intoxicant to the patient.6 However, neither Hart nor the cases that follow it contains a discussion of the policy animating the approach taken. In the absence of such a discussion, we have few clues as to how the North Carolina courts would deal with certain differences between the Hart line of cases and the students’ claims here. For example, a social host may fairly assume that a guest will immediately drink any alcohol provided, limiting the time frame of any foreseeable harm to third parties, while the timing of consumption of prescription drugs is less clear. On the other hand, the Supreme Court of North Carolina has not distinguished between social hosts who provide alcohol and commercial providers of alcohol, and the latter might well argue that they too could not be sure of the timing of consumption. See, e.g., Estate of Mullis v. Monroe Oil Co., 349 N.C. 196, 505 S.E.2d 131 (N.C.1998). In considering what a North Carolina court would do in the present circumstance, we are guided by North Carolina‘s apparent wariness of health care claims by third parties, evidenced both by its flat ban on medical malpractice suits by third party victims, and the total absence of ordinary negligence cases permitting recovery against a health care provider by a third party victim.7 Given that background, we can only conclude that North Carolina would require a tight nexus between the provision of narcotics and the harm to the victim, if it permitted third party plaintiffs to recover at all.
In Hart and its progeny, facing a similar calculus, the Supreme Court of North Carolina required a plaintiff to prove that the defendant possessed knowledge of the risk attendant to his negligent conduct. Indeed, North Carolina law subsequent to Hart makes it unmistakably clear that a claim based on negligent provision of alcohol to a driver cannot succeed without a showing that at the time the defendant
In sum, given the post-Hart decisions, we are not sure whether the North Carolina courts would allow a suit by a third party against a hospital for negligently providing narcotics to a driver. If so, we believe that North Carolina courts would, at a minimum, require a third party plaintiff to allege that the hospital “knew or should have known,” when dispensing the drugs, that the patient was “under the influence of alcohol” or narcotics and “would shortly thereafter drive an automobile.” Hart, 420 S.E.2d at 178. The students never make equivalent allegations.
They do allege that when VA officials treated Jones “during August-September, 1996” they “w[ere] aware, or should have been aware” of his history of drug and alcohol addiction and yet “continued to prescribe large doses of narcotics“; that “prior to and on September 4, 1996 ... Jones was being prescribed drugs ... which ... impaired his ability ... and proximately caused ... [the] collision“; that “[a]s a proximate result of [the] VA‘s negligence [including a failure to supervise, manage, and administer proper dispensation of narcotics] ... Jones operated his vehicle on September 4, 1996 while impaired from drugs or the combination of drugs and alcohol; and, as a result of his impairment, caused the collision“; and finally that “[i]t was reasonably foreseeable that” the VA‘s negligent acts “could or would result in injury or death to one or more third persons.” However, the students never allege that when VA employees furnished Jones with narcotics, the employees knew or should have known that Jones was at that time “under the influence of alcohol” or narcotics and “would shortly thereafter drive an automobile.” Hart, 420 S.E.2d at 178. Without such allegations, their ordinary negligence claims must fail.
We recognize that, unlike Camalier and Estate of Mullis, which involved summary judgments, in this case the district court dismissed the complaints for failure to state a claim. This difference in procedural posture would be significant if the students had alleged facts sufficient to state the substantive elements of their claim. In this case, they did not. Because the students have not alleged that when VA employees provided narcotics to Jones, they knew or should have known that Jones at that time was intoxicated and
Thus, we do not affirm here because the students failed to forecast evidence sufficient to prove an element of an ordinary negligence claim, as the courts did in Camalier and Estate of Mullis, but because the students have failed to allege facts sufficient to state elements of such a claim. Even in these days of notice pleadings, see Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), a complaint asserting a negligence claim must disclose “that each of the elements is present in order to be sufficient.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1249 (2d ed. 1990 & Supp.2001) (citing cases to the effect that the elements of negligence “are as essential under modern pleading as they ever were“).
IV.
For the foregoing reasons, the judgments of the district court are AFFIRMED.