Medical Malpractice Versus Ordinary Negligence

Earlier this summer, the North Carolina Court of Appeals issued in an opinion in the case Goodman v. Living Centers-Se., Inc. which looked at the difference between medical malpractice and ordinary negligence in a nursing home setting. We have previously looked at the difference between medical malpractice and ordinary negligence, and this case adds to the existing case law.

First, let’s briefly review why we might care whether an action is medical malpractice or ordinary negligence. In most cases, the issue comes down to the heightened pleading requirements for a medical malpractice case. Rule 9(j) requires that a complaint alleging medical malpractice be certified by an expert reasonably believed to qualify under Rule 702 that the medical care did not comply with the applicable standard of care. A complaint alleging ordinary negligence is not required to have such a certification.

In Goodman, the medical malpractice statute of repose was also at issue. Under G.S. 1-15(c), a medical malpractice action cannot in any event “be commenced more than four years from the last act of the defendant giving rise to the cause of action[.]" An ordinary negligence action is subject to a three-year statute of limitations period under G.S. 1-52(16). However, if a ordinary negligence action filed within the statute of limitations period is voluntarily dismissed without prejudice under Rule 41, then “a new action based on the same claim may be commenced within one year after such dismissal, and ‘the refiled case will relate back to the original filing for purposes of tolling the statute of limitations.’”

This voluntary dismissal and refiling is what happened in Goodman. But before we get into the court of appeals’ reasoning, let’s first look at the facts of the case. The patient became a permanent resident of the long term nursing facility in April 2008. In September of 2008, an agent of the nursing facility “caused an instrumentality for the delivery of I.V. fluids to be improperly positioned next to the decedent's bed.” Because it was improperly positioned, it was unstable and fell on the patient, causing serious injuries which included blunt trauma to his head and a broken nose. The patient was admitted to the hospital for treatment but died about three weeks later.

The plaintiff filed a complaint seeking damages in negligence, wrongful death and breach of contract in October of 2010. In January of 2012, the plaintiff voluntarily dismissed the action without prejudice under Rule 41. The plaintiff then refiled the complaint one year later setting forth the same causes of action as in the October 2010 complaint. In July 2013, the trial court dismissed the plaintiff’s cause of action because it was barred by the statute of repose.

The court of appeals began its analysis by noting that the plaintiff never referenced “medical malpractice” in the complaint. Furthermore, because the complaint lacked a Rule 9(j) certification, the trial court did not need to reach the issue of the statute of repose: if the complaint was indeed one alleging medical malpractice, then the trial court was required to dismiss it for lack of the Rule 9(j) certification.

The plaintiff, however, argued that the complaint was one based in ordinary negligence. In looking at this argument, the court of appeals reviewed the prior case law regarding the difference between medical malpractice and ordinary negligence:

The crux of the issue before us is whether plaintiff's claims, which stem from an incident in which defendant, acting through its agents, improperly placed an instrumentality for the delivery of I.V. fluids near the decedent such that it fell and injured him, constitute a medical malpractice action or an action sounding in ordinary negligence. In making such determination, we look to whether the injury resulted from the application of "specialized knowledge, labor, or skill," or from actions which were primarily "physical or manual." Prior case law is instructive. For example, in [Lewis v.] Setty, the quadriplegic plaintiff was injured when he was moved from an examination table to a wheelchair.This Court held that the alleged negligent conduct was "predominately a physical or manual activity" which did not implicate the defendant's professional services but fell "squarely within the parameters of ordinary negligence." Similarly, in Norris v. Rowan Memorial Hospital, this Court concluded that the hospital employees' failure to raise the rails of a bed or instruct the patient to ask for assistance in getting out of bed (which resulted in the patient falling and breaking her hip) stemmed from ordinary negligence because the "alleged breach of duty did not involve the rendering or failure to render professional nursing or medical services requiring special skills." Finally, in Taylor v. Vencor, Inc., the administrator of a patient's estate brought a wrongful death action against a nursing home, alleging that the nursing home failed "through inadequate staffing and other negligent behavior, to provide adequate observation and supervision" of a patient who died after lighting her nightgown on fire when attempting to light a cigarette. This Court held that "the observance and supervision of the plaintiff, when she smoked in the designated smoking area, did not constitute an occupation involving specialized knowledge or skill." We additionally remarked: "Preventing a patient from dropping a match or a lighted cigarette upon themselves, while in a designated smoking room, does not involve matters of medical science."

The court looked at the plaintiff’s complaint which alleged that the defendant failed to properly place the I.V. apparatus in the patient’s room and also failed to warn the patient about the instability of the apparatus. The court then concluded that the “defendant's acts or failure to act clearly involved the exercise of manual dexterity as opposed to the rendering of any specialized knowledge or skill.” Therefore, the plaintiff’s complaint was one of ordinary negligence rather than medical malpractice.

Because the complaint was one of ordinary negligence, it was not required to contain a Rule 9(j) certification. Furthermore, it was not subject to the strict medical malpractice statute of repose in G.S. 1-15(c). The action was subject to the three year statute of limitations contained in G.S. 1-52(16), and the original complaint was filed within this period. The plaintiff was permitted to voluntarily dismiss the complaint without prejudice under Rule 41. By refiling within one year of the voluntary dismissal, "the refiled case [would] relate back to the original filing for purposes of tolling the statute of limitations." Therefore, the trial court should not have dismissed the plaintiff’s case for violating the statute of repose.

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