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  "name_abbreviation": "Sturgill v. Ashe Memorial Hospital, Inc.",
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    "judges": [
      "Judges McCULLOUGH and BRYANT concur."
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    "parties": [
      "PEGGY JOHNSON STURGILL, Administratrix of the Estate of CHARLIE L. JOHNSON, Plaintiff v. ASHE MEMORIAL HOSPITAL, INC., Defendant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nPlaintiff appeals from an order granting defendant\u2019s motion for summary judgment because of failure to have medical care reviewed by a certifying expert as required for a medical malpractice action by Rule 9(j) of the North Carolina Rules of Civil Procedure. The dispos-itive issue in this case is whether the use of restraints on a patient is a medical procedure. Because we conclude that the use of restraints in the case sub judice is a medical procedure, we affirm.\nI. Background\n\u201cA medical assessment for the use of restraints can be delicate and complex, and as such, requires the application of clinical judgment.\u201d According to defendant\u2019s internal policy on restraints, the use of restraints requires an order written by a physician or a physician\u2019s assistant (PA). When a physician or PA is not immediately available, defendant\u2019s policy allows a nurse to initiate the use of restraints if \u201c[b]ased on an appropriate assessment of the patient.\u201d An appropriate assessment \u201cincludes assessing the patient\u2019s medications, orthopedic diseases, neurological status . . . and other medical conditions.\u201d\nIf a nurse initiates the use of restraints, a physician is to be notified immediately if the nurse initiates restraints based on a significant change in the patient\u2019s condition. Otherwise, a physician or PA must be notified within one hour of a nurse\u2019s initiation of restraints. If the restraints are to remain on the patient, a physician or PA must provide a verbal or written order.\nOn or about 23 November 2003, Charlie L. Johnson (\u201cdecedent\u201d), a seventy-six year-old man, was admitted to defendant hospital. At admission, decedent was disoriented, unable to walk, and suffering from a decreased level of consciousness. Decedent\u2019s cardiovascular, neurological and musculoskeletal systems were abnormal. Nurse Violet Barker conducted a nursing assessment of decedent upon his admission to defendant\u2019s facility and implemented defendant hospital\u2019s fall prevention plan (FPP), putting decedent\u2019s bedrails in the \u201cup\u201d position and placing restraints on decedent.\nOn 24 November 2003 defendant\u2019s employees removed the restraints from decedent. At 3:15 p.m. on 25 November 2003, defendant\u2019s employees found decedent out of bed and sitting in a chair. Around 7:00 p.m. defendant\u2019s employees noted that decedent was neurologically abnormal and suffering from confusion and dementia, and had a low oxygen saturation level and an irregular heartbeat. They assessed decedent as a fall risk \u201c8\u201d according to defendant\u2019s FPP. Doctor Clay was notified by phone and ordered nebulizer treatments, but no restraints were placed on decedent. Around 10:00 p.m. defendant\u2019s employees looked in on decedent and noted no distress. Decedent was not checked again until 11:30 p.m., when defendant\u2019s staff found decedent lying on the floor in his room. Decedent was unresponsive and had suffered head injuries, fractures to his right shoulder and elbow, and injury to his right knee. Decedent was transferred from defendant\u2019s facility to Wake Forest University Baptist Medical Center, where he remained until his death on 12 December 2003.\nOn 1 December 2005, Peggy Johnson Sturgill, Administratrix of the Estate of Charlie L. Johnson, filed a complaint against Ashe Memorial Hospital, Inc. Defendant answered on 18 December 2005. On 7 June 2006 defendant moved for summary judgment to dismiss the action pursuant to Rule 9(j) and Rule 56 of the North Carolina Rules of Civil Procedure on the grounds that plaintiff failed to have the medical care reviewed by a person qualified under Rule 702 of the Rules of Evidence who is willing to testify that the nursing and medical care did not comply with the applicable standard of practice. On 2 August 2006, an amended motion for summary judgment was filed by defendant to include supporting affidavits. On 3 August 2006, plaintiff submitted supporting affidavits. On 14 August 2006, Judge John O. Craig, III, heard the motion for summary judgment. On 29 August 2006, Judge Craig granted defendant\u2019s motion for summary judgment pursuant to Rule 56 and Rule 9(j) of the North Carolina Rules of Civil Procedure, dismissing the complaint with prejudice. Plaintiff appeals.\nII. Standard of Review\nSummary judgment is appropriate if \u201cthe pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c). A trial court\u2019s grant of summary judgment receives de novo review on appeal, and evidence is viewed in the light most favorable to the non-moving party. Stafford v. County of Bladen, 163.N.C. App. 149, 151, 592 S.E.2d 711, 713, disc. review denied and appeal dismissed, 358 N.C. 545, 599 S.E.2d 409 (2004).\nIII. Legal Analysis\nPlaintiff contends the trial court erred by classifying her claim as one for medical malpractice and granting summary judgment for defendant on that basis. Plaintiff contends that defendant\u2019s motion for summary judgment should have been denied because the complaint alleges that the failure to implement defendant\u2019s FPP and failure to supervise decedent do not involve matters of specialized science or skill, therefore constitutes only a claim for ordinary negligence which does not require Rule 9 CD certification. Specifically, plaintiff contends that claims against a hospital do not necessarily allege medical malpractice, citing Duke University v. St. Paul Fire and Marine Ins. Co., 96 N.C. App. 635, 640-41, 386 S.E.2d 762, 766, disc. review denied, 326 N.C. 595, 393 S.E.2d 876 (1990) (\u201c[Negligence actions against health care providers may be based upon breaches of the ordinary duty of reasonable care where the alleged breach does not involve rendering or failing to render professional services requiring special skills.\u201d).\nPlaintiff further contends that the case sub judice is analogous to cases in which this Court classified actions against health care providers as claims for ordinary negligence. To support this contention, plaintiff cites Lewis v. Setty, 130 N.C. App. 606, 503 S.E.2d 673 (1998) (moving a patient from an exam table to a wheelchair did not involve specialized knowledge or skill and as such did not constitute medical malpractice requiring Rule 9(j) certification), Taylor v. Vencor, Inc., 136 N.C. App. 528, 530, 525 S.E.2d 201, 203 (\u201cobservation and supervision of the plaintiff-nursing home resident, when she smoked in the designated smoking area, did not constitute an occupation involving specialized knowledge or skill\u201d), disc. review denied, 351 N.C. 646, 543 S.E.2d 889 (2000), and Norris v. Rowan Memorial Hospital, Inc., 21 N.C. App. 623, 626, 205 S.E.2d 345, 348 (1974) (failing to raise the side rails on the patient\u2019s bed in violation of hospital rules and failing to give proper attention \u201cdid not involve the rendering or failure to render professional nursing or medical services requiring special skills\u201d).\nDefendant responds that plaintiffs complaint only alleges that decedent\u2019s accident occurred as a result of being unrestrained. Defendant argues that because the use of restraints requires an order from a physician or PA based on clinical judgment, it is therefore a professional service, rendering plaintiff\u2019s complaint a claim for medical malpractice, not a claim for ordinary negligence. Accordingly, defendant contends that the complaint was properly dismissed for failure to obtain and include Rule 9(j) certification.\nRule 9(j) provides, in pertinent part:\nAny complaint alleging medical malpractice by a health care provider as defined in G.S. 90-21.11 in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless ... [t]he pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care[.]\nN.C. Gen. Stat. \u00a7 1A-1, Rule 9(j).\nAs used in Rule 9(j), \u201cthe term \u2018medical malpractice action\u2019 means 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.\u201d N.C. Gen. Stat. \u00a7 90-21.11 (2005) (emphasis added).\n\u201cProfessional services\u201d has been defined by this Court to mean an act or service \u201c \u2018arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor [or] skill involved is predominantly mental or intellectual, rather than physical or manual.\u2019 \u201d Smith v. Keator, 21 N.C. App. 102, 105-06, 203 S.E.2d 411, 415 (quoting Marx v. Hartford Accident & Indem. Co., 183 Neb. 12, 14, 157 N.W.2d 870, 872 (1968)), aff\u2019d, 285 N.C. 530, 206 S.E.2d 203, appeal dismissed, 419 U.S. 1043, 42 L. Ed. 2d 636 (1974).\nIn determining whether or not Rule 9(j) certification is required, the North Carolina Supreme Court has held that \u201cpleadings have a binding effect as to the underlying theory of plaintiff\u2019s negligence claim.\u201d Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 102 (2002); see also Bratton v. Oliver, 141 N.C. App. 121, 125, 539 S.E.2d 40, 43 (2000) (\u201cA party is bound by his pleadings and, unless withdrawn, amended or otherwise altered, the allegations contained in all pleadings ordinarily are conclusive as against the pleader. He cannot subsequently take a position contradictory to his pleadings.\u201d (citation and quotation omitted)), disc. review denied, 353 N.C. 369, 547 S.E.2d 808 (2001).\nPlaintiff\u2019s brief characterizes the complaint as analogous to Norris, contending that it is partly based on failure to implement defendant\u2019s FPP, and also analogous to Taylor, contending that it is partly based on defendant\u2019s failure to supervise decedent. However, a careful reading shows that the complaint is not based on failure to implement defendant\u2019s FPP or on failure to supervise decedent, but is based solely on the lack of restraints on decedent.\nThe complaint mentions the FPP only in passing when reciting the factual background to the complaint: \u201cnurse Violet Barker implemented the Defendant facility\u2019s fall prevention plan and placed his bedrails in the \u2018up\u2019 position and placed restraints on the decedent.\u201d No other mention of the FPP is made in plaintiff\u2019s complaint or supporting affidavits, and the text of defendant\u2019s FPP was only admitted into the record by defendant\u2019s affidavits. Furthermore, the record indicates that the FPP was followed by defendant\u2019s employees, noting that decedent\u2019s bedrails were placed in the \u201cup\u201d or raised position. Plaintiff\u2019s affidavits also confirm that the bedrails were raised, in compliance with the FPP. In addition, the FPP did not require the staff to check on decedent at regular timed intervals but \u201cevery time they pass his room,\u201d and plaintiff\u2019s complaint shows compliance with this requirement with decedent being checked at varying intervals, as the nurses passed his room.\nPlaintiff\u2019s complaint makes only one allegation that could be generously construed as being based on the failure of defendant to supervise decedent.\n14. At 11:30 p.m., on November 25, 2003, the nursing staff checked Decedent for the first time in an hour and a half. At this time, nurse Sharon Hartzog found the Decedent lying on the floor in his room.\nPlaintiff does not allege that defendant had any duty to check on decedent sooner than within an hour and a half, and makes no allegation as to how failing to check on plaintiff during that hour and a half caused plaintiff\u2019s injuries. See City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651, 656, 268 S.E.2d 190, 194 (1980) (listing the essential elements of a negligence claim).\nWhile we do not find any allegation in the complaint that alleges ordinary negligence based on failure to follow the FPP, or based on failure to supervise, plaintiff\u2019s complaint does state that:\n15. As a direct and proximate result of the Decedent being unrestrained, the Decedent was able to climb out of his bed and fall. (Emphasis added.)\nFrom the plain meaning of this statement, plaintiff is basing her complaint on defendant\u2019s lack of restraints on decedent as the cause of decedent\u2019s fall and resulting injuries, not on the failure to follow the FPP or failure to supervise. In addition, plaintiff\u2019s complaint noted the failure of defendant to put restraints on decedent or the lack of restraints on decedent at least seven times. Furthermore, plaintiff\u2019s accompanying affidavits state:\nIf he had been properly restrained, my father would not have been able to have gotten out of bed and fallen .... If he had been properly restrained, Mr. Johnson would not have been able to have gotten out of bed and fallen.\n(Emphasis added.)\nThis statement further shows that the claim was based solely on the hospital\u2019s lack of restraints on decedent.\nIt is undisputed in the record that the use of restraints is a medical decision that normally \u201crequires an order written by a physician or physician\u2019s assistant.\u201d It is also undisputed in the record that \u201c[a] medical assessment for the use of restraints can be delicate and complex, and as such, requires the application of clinical judgment.\u201d Although a nurse can administer restraints on a patient, as nurse Barker did on 23 November 2003, a physician or PA must be notified within one hour and provide an order for the restraint to remain. Because the decision to apply restraints is a medical decision requiring clinical judgment and intellectual skill, see Smith v. Keator, 21 N.C. App. at 105-06, 203 S.E.2d at 415, it is a professional service. Consequently, plaintiff\u2019s complaint is a claim for medical malpractice, thus requiring rule 9Q) certification.\nFinally, plaintiff attempted to put a catch-all negligence allegation in her complaint:\n17. At the times and places set forth above, the Defendant, through its employees and agents, were [sic] negligent by failing to act reasonably and diligently with regard to the care, safety, and well-being of the Decedent.\nThis statement makes reference to the \u201ctimes and places set forth above,\u201d each of which, other than the basic factual context and allegations regarding the state of decedent\u2019s health, refers to the lack of restraints placed on decedent.\nAlthough the facts in the case sub judice are somewhat similar to the cases cited by plaintiff, she has chosen to base her complaint on the lack of restraints on decedent. Plaintiff did not assert a theory of ordinary negligence in her pleadings based on the failure to implement the FPP or failure to supervise decedent. On review, plaintiff is bound by her pleadings, and may not raise this new theory of negligence for the first time on appeal.\nIV. Conclusion\nRule 9Q) provides that \u201c[a]ny complaint alleging medical malpractice . . . shall be dismissed\u201d if it does not comply with the certification mandate. N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j); Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002). (\u201c[Mjedical malpractice complaints have a distinct requirement of expert certification with which plaintiffs must comply. Such complaints will receive strict consideration by the trial judge. Failure to include the certification necessarily leads to dismissal.\u201d). For the reasons stated above, we hold that plaintiff\u2019s original complaint was for medical malpractice and required Rule 9(j) certification. Because Rule 9(j) certification was not included in plaintiff\u2019s complaint, the trial court\u2019s entry of summary judgment for defendant is affirmed.\nAffirmed.\nJudges McCULLOUGH and BRYANT concur.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Vannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S. Johnson, for the plaintiff-appellant.",
      "Sharpless & Stavola, P.A., by Brenda S. McClearn, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "PEGGY JOHNSON STURGILL, Administratrix of the Estate of CHARLIE L. JOHNSON, Plaintiff v. ASHE MEMORIAL HOSPITAL, INC., Defendant\nNo. COA06-1476\n(Filed 6 November 2007)\nMedical Malpractice\u2014 fall by patient \u2014 failure to use restraints \u2014 Rule 9(j) certification missing\nThe trial court correctly entered summary judgment for defendant based on the failure to include a Rule 9(j) certification in an action involving a disoriented patient\u2019s fall in a hospital. Plaintiff argued that the claim was for ordinary negligence arising from failure to follow a fall prevention plan and a failure of supervision, but the complaint concerned the failure to use restraints, which was a medical decision.\nAppeal by plaintiff from Order entered 29 August 2006 by Judge John O. Craig, III, in Ashe County Superior Court. Heard in the Court of Appeals 10 May 2007.\nVannoy, Colvard, Triplett & Vannoy, P.L.L.C., by Daniel S. Johnson, for the plaintiff-appellant.\nSharpless & Stavola, P.A., by Brenda S. McClearn, for defendant-appellee."
  },
  "file_name": "0624-01",
  "first_page_order": 654,
  "last_page_order": 661
}
