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  "name": "BERNICE G. ALLEN, Administrator of THE ESTATE OF WILLIAM LEE ALLEN, Plaintiff v. COUNTY OF GRANVILLE, GRANVILLE HEALTH SYSTEMS, GRANVILLE MEDICAL CENTER, JOHN DOE and JANE DOE, Defendants",
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    "judges": [
      "Judges HUNTER and ERVIN concur."
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    "parties": [
      "BERNICE G. ALLEN, Administrator of THE ESTATE OF WILLIAM LEE ALLEN, Plaintiff v. COUNTY OF GRANVILLE, GRANVILLE HEALTH SYSTEMS, GRANVILLE MEDICAL CENTER, JOHN DOE and JANE DOE, Defendants"
    ],
    "opinions": [
      {
        "text": "MARTIN, Chief Judge.\nPlaintiff appeals from an order granting defendants\u2019 motion to dismiss pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure. Plaintiff\u2019s complaint alleges that on or about 4 August 2006, plaintiff\u2019s son, the decedent, was transported from his home to Granville Medical Center (\u201cMedical Center\u201d) for medical treatment for a series of seizures. At around three o\u2019clock in the morning, plaintiff was contacted by an employee of the Medical Center and advised that decedent was being discharged and that someone needed to pick him up from the emergency room. Plaintiff requested that the Medical Center not release her son until she was able to come pick him up as he \u201cwas disabled, had a history of seizures and could not come home on his own.\u201d Plaintiff also told the Medical Center employee that she would be unable to obtain transportation for several hours as it was very early in the morning. When plaintiff arrived at the Medical Center, she was informed that the decedent had been released and left the emergency room. The decedent never returned home. In March 2007, decedent\u2019s remains were found in a ravine about a half of a mile from the Medical Center. Plaintiff filed a complaint sounding in negligence against the Medical Center, certain of its employees, Granville Health Systems, and Granville County. All defendants filed an answer and motion to dismiss based on plaintiff\u2019s lack of a certification under N.C.G.S. \u00a7 1A-1, Rule 90). The motion was granted and plaintiff gave notice of appeal.\nPlaintiffs sole assignment of error is that the trial court erred in dismissing her complaint for its failure to assert that the alleged negligent medical care had been reviewed by an appropriate medical expert as required by N.C.G.S. \u00a7 1A-1, Rule 9Q). She contends her complaint alleges ordinary negligence rather than a claim for medical malpractice in \u201cfurnishing or failure to furnish professional services in the performance of medical ... or other health care by a health care provider,\u201d N.C. Gen. Stat. \u00a7 90-21.11 (2009), and therefore, no Rule 9(j) certification was required. We agree.\n\u201c[A] plaintiff\u2019s compliance with Rule 90) requirements clearly presents a question of law to be decided by a court, not a jury. A question of law is reviewable by this Court de novo.\u201d Phillips v. Triangle Women\u2019s Health Clinic, Inc., 155 N.C. App. 372, 376, 573 S.E.2d 600, 603 (2002) (citations omitted), aff\u2019d per curiam and disc. review improvidently allowed, 357 N.C. 576, 597 S.E.2d 669 (2003). \u201cWhether an action is treated as a medical malpractice action or as a common law negligence action is determined by our statutes . . . .\u201d Smith v. Serro, 185 N.C. App. 524, 529, 648 S.E.2d 566, 569 (2007). As defined by N.C.G.S. \u00a7 90-21.11, a medical malpractice action is \u201ca 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 ... or other health care by a health care provider.\u201d N.C. Gen. Stat. \u00a7 90-21.11. \u201cProfessional services has been-defined by this Court to mean an act or service arising 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.\u201d Lewis v. Setty, 130 N.C. App. 606, 608, 503 S.E.2d 673, 674 (1998) (alterations in original and internal quotation marks omitted), appeal after remand, 140 N.C. App. 536, 537 S.E.2d 505 (2000).\n\u201cOur appellate courts have not clearly set forth the standard by which to review a trial court\u2019s motion to dismiss pursuant to Rule 9(j). Nevertheless, when ruling on such a motion, a court must consider the facts relevant to Rule 9(j) and apply the law to them.\u201d Phillips, 155 N.C. App. at 376, 573 S.E.2d at 602-03. \u201cIn determining whether or not Rule 9(j) certification is required, the North Carolina Supreme Court has held that pleadings have a binding effect as to the underlying theory of plaintiff\u2019s negligence claim.\u201d Sturgill v. Ashe Mem\u2019l Hosp., Inc., 186 N.C. App. 624, 628, 652 S.E.2d 302, 305 (2007) (internal quotation marks omitted), disc. review denied, 362 N.C. 180, 658 S.E.2d 662 (2008). Applying the facts as set forth above, we conclude that plaintiff\u2019s factual allegations in her complaint do not allege a claim for medical malpractice so as to require a Rule 9(j) certification. Plaintiff makes no claim that the Medical Center failed to furnish professional services or provide treatment to the decedent, nor has she alleged that the decision by health care workers concerning decedent\u2019s medical fitness after treatment was unsound. She has not claimed that the Medical Center \u201ccommitted medical malpractice, breached [the] applicable standard of care or provided medical care\u201d to the decedent. Sharpe v. Worland, 147 N.C. App. 782, 784, 557 S.E.2d 110, 112 (2001) (holding that, where the plaintiff failed to allege that the defendant hospital \u201ccommitted medical malpractice, breached [the] applicable standard of care or provided medical care\u201d and instead claimed only a breach of direct duties owed to the plaintiff by the hospital, ordinary negligence standards applied), disc review denied and supersedeas dismissed as moot, 356 N.C. 615, 575 S.E.2d 27 (2002). In addition, read in context, plaintiff does not appear to challenge the Medical Center\u2019s professional judgement in discharging the decedent. Rather, plaintiff alleges that the Medical Center failed to supervise a person in its care, despite being on notice that he could not care for himself, and permitted him to leave the premises without being accompanied by a responsible adult. This Court has determined that when a negligence claim \u201carises out of policy, management or administrative decisions,\u201d it is \u201cderived from ordinary negligence principles.\u201d Estate of Waters v. Jarman, 144 N.C. App. 98, 103, 547 S.E.2d 142, 145, disc. review denied, 553 S.E.2d 213 (2001). In addition, this Court has found that failing to supervise a mentally and physically infirm patient while she smoked was ordinary negligence. Taylor v. Vencor, Inc., 136 N.C. App. 528, 529, 530, 525 S.E.2d 201, 202, 203, disc. review denied, 351 N.C. 646, 543 S.E.2d 884, disc review denied, 543 S.E.2d 889 (2000). Likewise, failing to supervise a patient recently treated with seizures until a responsible adult was able to care for him would also be a claim of ordinary negligence. Thus, the trial court erred in granting defendants\u2019 motion to dismiss.\nReversed.\nJudges HUNTER and ERVIN concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Bachman & Swanson, PLLC, by GlenD. Bachman, for plaintiff - appellant.",
      "Cranfill, Sumner & Hartzog, L.L.P., by C. Houston Foppiano and Meredith Taylor Berard, for defendants-appellees."
    ],
    "corrections": "",
    "head_matter": "BERNICE G. ALLEN, Administrator of THE ESTATE OF WILLIAM LEE ALLEN, Plaintiff v. COUNTY OF GRANVILLE, GRANVILLE HEALTH SYSTEMS, GRANVILLE MEDICAL CENTER, JOHN DOE and JANE DOE, Defendants\nNo. COA09-957\n(Filed 6 April 2010)\nNegligence\u2014 motion to dismiss \u2014 failure to supervise patient\u2014 Rule 9(j) certification not required\nThe trial court erred by granting defendant\u2019s motion to dismiss plaintiff\u2019s complaint based on its failure to include Rule 9(j) certification. Plaintiff\u2019s complaint alleging that defendant\u2019s failure to supervise a patient recently treated with seizures until a responsible adult was able to care for him was a claim of ordinary negligence rather than a claim for medical malpractice in furnishing or failure to furnish professional services in the performance of medical or other health care by a health care provider.\nAppeal by plaintiff from order entered 9 March 2009 by Judge Henry W. Hight, Jr. in Granville County Superior Court. Heard in the Court of Appeals 25 January 2010.\nBachman & Swanson, PLLC, by GlenD. Bachman, for plaintiff - appellant.\nCranfill, Sumner & Hartzog, L.L.P., by C. Houston Foppiano and Meredith Taylor Berard, for defendants-appellees."
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