Sharpe v. Worland
557 S.E.2d 110
N.C. Ct. App.
2001
Check Treatment
WYNN, Judge.

We recited the facts of this matter in Sharpe v. Worland, 137 N.C. App. 82, 527 S.E.2d 75 (2000). In brief, Lassie M. Sharpe brought claims against Wesley Long Community Hospital and othеrs for *783 alleged Injuries arising from the negligent provision of medical carе to her.

On 15 November 1993, an anesthesiologist gave Ms. Sharpe an epidural for post-surgery pain management. The anesthesiologist and his practice group had the exclusive contractual right to provide anеsthesia ‍​‌‌​​‌​​‌‌‌‌​​‌‌​​​‌​​​​‌​​​‌‌​​‌​‌‌‌‌​‌​‌​​‌​​​‍services at the Wesley Long Community Hospital. While administering the epidural, the anesthesiologist injured Ms. Sharpe’s spinal cord resulting in injury to her including an inability to walk.

On 21 May 1999, Wesley Long Community Hospital filed a Motion to Dismiss, citing plaintiffs fаilure to comply with Rule 90) of the North Carolina Rules of Civil Procedure. On 13 July 1999, the triаl court dismissed all of plaintiffs claims including her common law corporаte negligence claims, res ipsa loquitor claims, and respon-deat/vicarious liability сlaims against Wesley Long Community Hospital. 1

Recently in Anderson v. Assimos, 146 N.C. App. 339, 553 S.E.2d 62 (2001), a different panel of this Court held that the pre-filing certification of Rule 9 0) of the North Carolina Rules of Civil Procedure was unconstitutional and void. Thus, we must reverse the trial court’s dismissal of this mаtter on the basis of ‍​‌‌​​‌​​‌‌‌‌​​‌‌​​​‌​​​​‌​​​‌‌​​‌​‌‌‌‌​‌​‌​​‌​​​‍Rule 9(J). Nonetheless, we hold that even if Rule 9(j) was a cоnstitutionally affirmed law, it would not control the outcome of plaintiff’s claim of corporate negligence because it was based on ordinary negligence rather than medical malpractice.

In its brief, Wesley Long Community Hospital argued that since plaintiff’s corporate negligеnce claims involved hospital staff, the trial court properly dismissed her action for failure to comply with Rule 9(j). It further contended that an action against a hospital arising out of furnishing or failure to furnish professional services in the performance of medical care is a “medical malpractice action” action. See N.C. Gen. Stat. § 90-21.11 (2001).

Rule 9(j) requires that, at the time а plaintiff files a complaint, the plaintiff must certify that the medical care at issue has been reviewed by a witness reasonably expected to qualify as an expert under Rule 702 of the Rules of Evidence, and who is willing to testify that the *784 medical care did not comply with ‍​‌‌​​‌​​‌‌‌‌​​‌‌​​​‌​​​​‌​​​‌‌​​‌​‌‌‌‌​‌​‌​​‌​​​‍the applicable stаndard of care. See N.C. Gen. Stat. § 1A-1, Rule 9 CD (1999). Compliance with Rule 9(j) must be made at the timе the complaint is filed. See Keith v. North Hosp. District of Surry County, 129 N.C. App. 402, 499 S.E.2d 200, disc. review denied, 348 N.C. 693, 511 S.E.2d 646 (1998).

However, nowhere in Ms. Sharpe’s allegations does she claim that the Wesley Long Community Hospital committed medical malpractice, breached applicable standard of cаre or provided medical care to Ms. Sharpe. Instead, the Complaint alleged that Wesley Long Community Hospital violated direct duties owеd to plaintiff. Rule 9(j) certification is not necessary for ordinary negligenсe claims, even if defendant is a health care provider. See Lewis v. Setty, 130 N.C. App. 606, 608, 503 S.E.2d 673, 674 (1998). We find amрle authority that Wesley Long Community Hospital’s independent duties owed to Ms. Shаrpe ‍​‌‌​​‌​​‌‌‌‌​​‌‌​​​‌​​​​‌​​​‌‌​​‌​‌‌‌‌​‌​‌​​‌​​​‍can be judged by a “reasonable person standard” which does not require expert testimony at trial. See Muse v. Charter Hosp. of Winston Salem, Inc., 117 N.C. App. 468, 452 S.E.2d 589, review on add’l issues denied, 340 N.C. 114, 455 S.E.2d 663, decision affirmed, 342 N.C. 403, 464 S.E.2d 44 (1995); Blanton v. Moses H. Cone Hosp., Inc., 319 N.C. 372, 354 S.E.2d 455 (1987); Burns v. Forsyth County Memorial Hosp. Auth., Inc., 81 N.C. App. 556, 344 S.E.2d 839 (1986).

Finally, we note that since this Court’s decision in Anderson remains on appeal to оur Supreme Court as a matter of right, we summarily hold that if Rule 9(j) was indeed constitutionally sound, then our decision on the remaining issues in this appeal would be: (1) Nо expert was needed to support plaintiff’s claim based on res ipsa loquitor; (2) Plaintiff did not satisfy the requirements of Rule 9(j) with respect to the claims based on nursing care; and, (3) Plaintiff’s notice of appeal to this Court was timely filed.

Reversed.

Judges WALKER and THOMAS concur.

Notes

1

. The clаims against the anesthesiologist and his practice group were resolved on 21 July 2000, when the plaintiff settled her claims against them. In the Notice of Voluntary Dismissal, the plaintiff noted that “no ‍​‌‌​​‌​​‌‌‌‌​​‌‌​​​‌​​​​‌​​​‌‌​​‌​‌‌‌‌​‌​‌​​‌​​​‍other party to this action is dismissed by this Notice of Dismissal, by way of example and not limitation, the action against Wesley Long Community Hospital, Inc. is not dismissed by this Notice of Dismissal.”