Court Of Appeals Helps Clarify Line Between Ordinary Negligence and Medical Malpractice Claims


Prognosis Blog

By Todd Hemphill and Matthew A. Fisher

Since the 2001 amendments to Rule 9(j), N.C.R.Civ.P. and other related statutes, the line between whether a medical provider’s actions constitute medical malpractice or ordinary negligence has become much more important. A relatively recent N.C. Court of Appeals decision demonstrates the impact of coming down on the wrong side of that line, upholding the  dismissal of the Plaintiffs’ case alleging ordinary negligence, when discovery revealed that the Defendant’s actions, if proven, would constitute medical malpractice, and there was no Rule 9(j) certification.

In Gause v. New Hanover Reg’l Med.Ctr., __ N.C.App. __, 795 S.E.2d 411, 2016 N.C. App. LEXIS 1358 (Dec. 30, 2016), Plaintiff Gause was seriously injured in a fall during an X-ray examination at Defendant hospital.  She and her family brought an action for ordinary negligence and negligence on a theory of res ipsa loquitur.  During pre-trial discovery, evidence revealed that the fall occurred when an X-ray technician was rendering services requiring specialized skill and clinical judgment.  The trial court granted Defendant’s motion for summary judgment on the grounds that the Plaintiffs’ claim sounded in medical malpractice and failed to comply with Rule 9(j), N.C.R.Civ.P., because there had been no certification of expert review prior to filing the claim. The trial court dismissed Plaintiffs’ res ipsa loquitur claim and dismissed her ordinary negligence claim without prejudice. The trial court also denied Plaintiffs’ motion to amend the Complaint to add a claim of medical negligence.  Plaintiffs filed a Notice of Appeal.[1]

The Court of Appeals affirmed the trial court’s ruling. In analyzing the X-ray technician’s actions, the Court relied upon prior Court of Appeals decisions distinguishing medical malpractice from ordinary negligence claims.  Those cases defined medical malpractice claims as ones “alleging injury resulting from activity that required clinical judgment and intellectual skill,” and ordinary negligence claims as those “alleging injury caused by acts and omissions in a medical setting that were primarily manual or physical and which did not involve a medical assessment or clinical judgment.” 2016 N.C. App. LEXIS 1358 at p. 9 (citations omitted).

Applying those decisions to the facts of this case, the Court of Appeals relied in part on the deposition testimony of the X-ray technician, who testified that in deciding that it was appropriate for the patient to stand for her X-rays, he was exercising his professional judgment in trying to give the radiologist an optimal image without compromising the patient’s safety and comfort.  Perhaps even more damning to Plaintiffs’ case were the statements in their interrogatory answers, which contended “that Defendant, through its agents and employees, was negligent in furnishing or failing to furnish the following services: assessing the patient, inquiring about and reviewing the patient’s medical history, and administering the X-ray.”   Id. at p. 12.  The Court found that each of these services involved specialized knowledge and skills which were predominantly mental or intellectual, rather than physical or manual. Thus, because Plaintiffs’ claim sounded in medical malpractice, rather than ordinary negligence, and because the Complaint contained no 9(j) certification, it was subject to dismissal.

On the trial court’s denial of the motion to amend the Complaint, the Court of Appeals determined that Plaintiffs had failed to perfect their appeal of that issue, and therefore concluded that it did not have jurisdiction to review that Order.

Todd Hemphill and Matt Fisher are both partners and members of the Health Law Section in the Raleigh office of Poyner Spruill LLP.  Todd’s practice focuses on health care strategic planning issues, assisting provider clients in developing health care development strategies under the Certificate of Need law, negotiating health care transactions, and litigating Certificate of Need awards and denials.  Matt’s practice also focuses on the representation of health care providers, with an emphasis on HIPAA compliance, privacy and information security matters and Certificate of Need litigation.

[1] There is no discussion in the Court’s opinion regarding the res ipsa loquitur claim, so presumably, Plaintiffs did not appeal that portion of the trial court’s judgment.