{ "id": 4244453, "name": "LINDA M. ROBINSON and FRANK ROBINSON, Plaintiffs v. DUKE UNIVERSITY HEALTH SYSTEMS, INC. d/b/a DUKE UNIVERSITY MEDICAL CENTER; DUKE UNIVERSITY AFFILIATED PHYSICIANS, INC.; CHRISTOPHER MANTYH, MD; ERICH S. HUANG, MD; MAYUR B. PATEL, MD; LEWIS HODGINS, MD; JANE AND JOHN DOE, Defendants", "name_abbreviation": "Robinson v. Duke University Health Systems, Inc.", "decision_date": "2013-08-20", "docket_number": "No. COA12-1239", "first_page": "215", "last_page": "239", "citations": [ { "type": "official", "cite": "229 N.C. App. 215" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "628 S.E.2d 851", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635639 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "861" }, { "page": "862" }, { "page": "862" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0851-01" ] }, { "cite": "614 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633104 ], "weight": 2, "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/614/0267-01" ] }, { "cite": "652 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639667 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/652/0255-01" ] }, { "cite": "361 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3738880, 3744162, 3740355, 3737259, 3740972, 3736277, 12640024, 3743483, 3742814 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0690-05", "/nc/361/0690-01", "/nc/361/0690-04", "/nc/361/0690-02", "/nc/361/0690-06", "/nc/361/0690-07", "/se2d/654/0248-02", "/nc/361/0690-03", "/nc/361/0690-08" ] }, { "cite": "644 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638421 ], "year": 2007, "pin_cites": [ { "page": "629" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0625-01" ] }, { "cite": "666 S.E.2d 127", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641835 ], "year": 2008, "pin_cites": [ { "page": "135", "parenthetical": "quoting Parks, 68 N.C. App. at 207, 314 S.E.2d at 290" } ], "opinion_index": 0, "case_paths": [ "/se2d/666/0127-01" ] }, { "cite": "645 S.E.2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638637 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "848", "parenthetical": "\"In order for the doctrine to apply, an average juror must be able to infer, through his common knowledge and experience and without the assistance of expert testimony, whether negligence occurred.\"" }, { "page": "848" }, { "page": "848", "parenthetical": "expert testimony necessary for the average juror to determine whether a stroke from air emboli during an esophagastroduodenoscopy surgical procedure was an injury that would not normally occur in the absence of negligence" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0846-01" ] }, { "cite": "666 S.E.2d 153", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641837 ], "year": 2008, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/se2d/666/0153-01" ] }, { "cite": "649 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639168 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "385", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)" }, { "page": "385" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0382-01" ] }, { "cite": "177 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301249 ], "year": 2006, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0290-01" ] }, { "cite": "435 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "792", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521670 ], "year": 1993, "pin_cites": [ { "page": "387", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0380-01" ] }, { "cite": "693 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "248-49", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 115", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4177217 ], "year": 2010, "pin_cites": [ { "page": "119", "parenthetical": "alteration in original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0115-01" ] }, { "cite": "571 S.E.2d 4", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "7", "parenthetical": "\"[A] party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.\"" } ], "opinion_index": 0 }, { "cite": "153 N.C. App. 435", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250280 ], "year": 2002, "pin_cites": [ { "page": "440", "parenthetical": "\"[A] party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/153/0435-01" ] }, { "cite": "359 N.C. 626", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799004 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0626-01" ] }, { "cite": "605 S.E.2d 154", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "156" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 194", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410973 ], "year": 2004, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0194-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 90-21.12", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2011, "opinion_index": 0 }, { "cite": "512 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "751" } ], "opinion_index": 0 }, { "cite": "350 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132179 ], "year": 1999, "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0277-01" ] }, { "cite": "183 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8205177 ], "year": 2007, "pin_cites": [ { "page": "630" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0625-01" ] }, { "cite": "278 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "255" } ], "opinion_index": 0 }, { "cite": "303 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572916 ], "year": 1981, "pin_cites": [ { "page": "305" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0303-01" ] }, { "cite": "166 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1932, "pin_cites": [ { "page": "290", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0 }, { "cite": "203 N.C. 384", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611536 ], "year": 1932, "pin_cites": [ { "page": "394", "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/203/0384-01" ] }, { "cite": "192 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160249 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "352", "parenthetical": "quoting Parks, 68 N.C. App. at 207, 314 S.E.2d at 290" }, { "page": "353" }, { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0340-01" ] }, { "cite": "13 S.E.2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1941, "pin_cites": [ { "page": "245" }, { "page": "245" }, { "page": "245" } ], "opinion_index": 0 }, { "cite": "219 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621551 ], "weight": 3, "year": 1941, "pin_cites": [ { "page": "182" }, { "page": "182" }, { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc/219/0178-01" ] }, { "cite": "314 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1984, "pin_cites": [ { "page": "289" }, { "page": "289" }, { "page": "290" }, { "page": "290" }, { "page": "289" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526880 ], "weight": 6, "year": 1984, "pin_cites": [ { "page": "206" }, { "page": "206" }, { "page": "207" }, { "page": "206" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0202-01" ] }, { "cite": "336 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1985, "pin_cites": [ { "page": "118", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "118" }, { "page": "118" }, { "page": "118" }, { "page": "118" }, { "page": "119", "parenthetical": "alterations and ellipsis in original" }, { "page": "117" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 689", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525060 ], "weight": 7, "year": 1985, "pin_cites": [ { "page": "692", "parenthetical": "internal quotation marks and citations omitted" }, { "page": "692" }, { "page": "692" }, { "page": "692" }, { "page": "691-92" }, { "page": "694" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0689-01" ] }, { "cite": "184 N.C. App. 285", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8185511 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "287-88", "parenthetical": "\"In order for the doctrine to apply, an average juror must be able to infer, through his common knowledge and experience and without the assistance of expert testimony, whether negligence occurred.\"" }, { "page": "288" }, { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0285-01" ] }, { "cite": "609 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2005, "pin_cites": [ { "page": "252", "parenthetical": "alterations in original" }, { "page": "252" }, { "page": "252", "parenthetical": "expert testimony necessary for a layperson to determine whether the defendant dentist used excessive or improper force in employing a \"Cryers elevator\" instrument during a wisdom tooth extraction resulting in nerve damage and a fractured jaw" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 694", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8471804 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "698", "parenthetical": "alterations in original" }, { "page": "699" }, { "page": "698-99" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0694-01" ] }, { "cite": "730 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "843" } ], "opinion_index": 0 }, { "cite": "731 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "opinion_index": 0 }, { "cite": "401 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "page": "657-58" }, { "page": "659" }, { "page": "659" }, { "page": "659", "parenthetical": "emphasis added" }, { "page": "659", "parenthetical": "expert testimony necessary for a layman to determine whether the force exerted by the defendant obstetrician during cesarean section child delivery was either improper or excessive so as to cause a uterine tear" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 332", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523883 ], "weight": 6, "year": 1991, "pin_cites": [ { "page": "333" }, { "page": "335" }, { "page": "335" }, { "page": "335" }, { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0332-01" ] }, { "cite": "727 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "879" }, { "page": "880", "parenthetical": "alteration in original" } ], "opinion_index": 0 }, { "cite": "111 S.E. 177", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "pin_cites": [ { "page": "178" } ], "opinion_index": 0 }, { "cite": "183 N.C. 235", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655892 ], "year": 1922, "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc/183/0235-01" ] }, { "cite": "536 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2000, "pin_cites": [ { "page": "362", "parenthetical": "quotingHarris v. Mangwn, 183 N.C. 235, 237, 111 S.E. 177,178 (1922)" }, { "page": "362", "parenthetical": "\"[Applicability of the res ipsa loquitur doctrine depends on whether[,] as a matter of common experience^] it can be said the [injury] could have happened without dereliction of duty on the part of the person charged with culpability.\" (internal quotation marks, citation, and emphasis omitted)" }, { "page": "362" }, { "page": "362" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127594 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "377-78", "parenthetical": "quotingHarris v. Mangwn, 183 N.C. 235, 237, 111 S.E. 177,178 (1922)" }, { "page": "378" }, { "page": "378" }, { "page": "377-78" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0375-01" ] }, { "cite": "423 S.E.2d 320", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "322" }, { "page": "323" }, { "page": "322-23", "parenthetical": "layman would have no basis for concluding that defendant was negligent in causing injury to plaintiff's sciatic nerve while extracting marrow during a bone marrow harvest procedure" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523038 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "149" }, { "page": "149-50" }, { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0145-01" ] }, { "cite": "678 S.E.2d 748", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "751" }, { "page": "751", "parenthetical": "\"Normally, in [medical malpractice] actions, both the standard of care and its breach must be established by expert testimony.\" (internal quotation marks and citation omitted)" }, { "page": "752", "parenthetical": "holding that the doctrine of res ipsa loquitur was not applicable where the plaintiff specifically alleged that a particular incision made by the defendant doctor to the plaintiff's left knee was the exact cause of her injury" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 691", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167993 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "696" }, { "page": "696" }, { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0691-01" ] }, { "cite": "192 N.C. App. 667", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160795 ], "year": 2008, "pin_cites": [ { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0667-01" ] }, { "cite": "677 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2009, "pin_cites": [ { "page": "477", "parenthetical": "emphasis added" }, { "page": "477" }, { "page": "478" } ], "opinion_index": 0 }, { "cite": "197 N.C. App. 238", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4167780 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "255-56", "parenthetical": "emphasis added" }, { "page": "255" }, { "page": "257-58" } ], "opinion_index": 0, "case_paths": [ "/nc-app/197/0238-01" ] }, { "cite": "692 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2010, "pin_cites": [ { "page": "473" }, { "page": "473" }, { "page": "473-76" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 642", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175820 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "646" }, { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0642-01" ] }, { "cite": "378 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "779" } ], "opinion_index": 0 }, { "cite": "324 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482580 ], "year": 1989, "pin_cites": [ { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0427-01" ] }, { "cite": "675 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2009, "pin_cites": [ { "page": "628" }, { "page": "628", "parenthetical": "alteration in original" }, { "page": "628" } ], "opinion_index": 0 }, { "cite": "363 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4150629 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "142" }, { "page": "142-43" }, { "page": "142-43" } ], "opinion_index": 0, "case_paths": [ "/nc/363/0140-01" ] }, { "cite": "361 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3739573 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "523-24", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)" }, { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0519-01" ] }, { "cite": "252 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "233", "parenthetical": "\"An Order denying a Rule 12(b)(6) motion is interlocutory and clearly not appealable.\"" } ], "opinion_index": 1 }, { "cite": "40 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549543 ], "year": 1979, "pin_cites": [ { "page": "230", "parenthetical": "\"An Order denying a Rule 12(b)(6) motion is interlocutory and clearly not appealable.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/40/0227-01" ] } ], "analysis": { "cardinality": 1617, "char_count": 62457, "ocr_confidence": 0.704, "pagerank": { "raw": 6.428965615154966e-08, "percentile": 0.3972146638665034 }, "sha256": "8bd06224f5bf60496a30bdd849d9386b390c686b57ebe3c761272909b92a45bb", "simhash": "1:2b205c4c0c890540", "word_count": 9919 }, "last_updated": "2023-07-14T15:07:10.338246+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge CALABRIA concurs in result only." ], "parties": [ "LINDA M. ROBINSON and FRANK ROBINSON, Plaintiffs v. DUKE UNIVERSITY HEALTH SYSTEMS, INC. d/b/a DUKE UNIVERSITY MEDICAL CENTER; DUKE UNIVERSITY AFFILIATED PHYSICIANS, INC.; CHRISTOPHER MANTYH, MD; ERICH S. HUANG, MD; MAYUR B. PATEL, MD; LEWIS HODGINS, MD; JANE AND JOHN DOE, Defendants" ], "opinions": [ { "text": "McCullough, judge.\nPlaintiffs Linda M. Robinson (\u201cRobinson\u201d) and her husband, Frank Robinson (collectively, \u201cplaintiffs\u201d) appeal from an order of the trial court granting summary judgment in favor of defendants Duke University Health Systems, Inc. d/b/a Duke University Medical Center (\u201cDUHS\u201d); Duke University Affiliated Physicians, Inc. (\u201cDUAP\u201d); Christopher Mantyh, M.D. (\u201cDr. Mantyh\u201d); Erich S. Huang, M.D. (\u201cDr. Huang\u201d); Mayur B. Patel, M.D. (\u201cDr. Patel,\u201d collectively with the aforementioned defendants, \u201cdefendants\u201d); and Lewis Hodgins, M.D. (\u201cDr. Hodgins), and dismissing their medical malpractice action with prejudice. On appeal, plaintiffs contend the trial court erred in granting summary judgment in favor of defendants because (1) their complaint stated a cause of action for medical negligence under the common law theory of res ipsa loquitur, and therefore their complaint complied with Rule 9(j)(3) of the North Carolina Rules of Civil Procedure for medical malpractice actions; and (2) they presented evidence establishing each and every element of a medical negligence claim, thereby creating a genuine issue of fact for trial. After careful review, we (1) affirm the trial court\u2019s order dismissing plaintiffs\u2019 action against defendants DUAP, Dr. Patel, and Dr. Hodgins and dismissing plaintiffs\u2019 punitive damages claim; (2) vacate the trial court\u2019s order granting summary judgment in favor of defendants on the basis of plaintiffs\u2019 compliance with Rule 9(j); and (3) reverse the trial court\u2019s award of summary judgment in favor of defendants Dr. Mantyh, Dr. Huang, and DUHS. We remand the matter to the trial court for further proceedings consistent with this opinion.\nI. Background\nOn 12 March 2008, Robinson was admitted to Duke University Medical Center with a diagnosis of severe constipation predominant irritable bowel syndrome and colonic inertia. After considering her treatment options, Robinson elected to undergo a subtotal/abdominal colectomy, a surgical procedure to remove a portion of the small intestine and reattach the intestine to the rectum using a surgical stapler. Dr. Mantyh, Chief of Gastrointestinal and Colorectal Surgeiy at the hospital, assisted by Dr. Huang, a general surgery resident at the hospital, performed Robinson\u2019s surgery.\nOn the day following her surgery, Robinson reported loose stool in her bed, and overnight, she reported bloody fluid passing from her vagina. Upon evaluation, it was discovered that Robinson\u2019s small intestine had been connected to her vagina, rather than to her rectum, during her surgical procedure. As a result, on 14 March 2008, Dr. Mantyh and Dr. Huang performed a second surgery on Robinson to correct the misconnection. The second surgery was successful in repairing the communication between Robinson\u2019s small intestine and her vagina. Robinson was subsequently discharged from the hospital on 27 March 2008.\nOn 29 April 2008, Robinson presented to Dr. Mantyh for follow-up outpatient care, at which time she had new complaints including difficulty speaking, left-sided weakness, erratic hand movements, and blurry vision. Robinson reported that her symptoms began following her second surgery and continued to worsen with time. Dr. Mantyh ordered that Robinson be admitted to the hospital, where she was diagnosed with conversion disorder, a psychiatric disorder related to recent conflict or stress. Robinson was subsequently discharged from the hospital on 2 May 2008.\nOn 10 March 2011, plaintiffs filed a complaint for medical negligence against all defendants. Plaintiffs\u2019 complaint relies on the common law theoiy of res ipsa loquitur. Plaintiffs\u2019 complaint also sought punitive damages. On 19 April 2011, all defendants moved to dismiss plaintiffs\u2019 action pursuant to Rules 9Q), 12(b)(2), 12(b)(5), 12(b)(6), and 41(b) of the North Carolina Rules of Civil Procedure. On 1 July 2011, the trial court denied defendants\u2019 motion to dismiss as to all defendants except Dr. Hodgins, as to whom plaintiffs\u2019 action was dismissed with prejudice. Defendants then filed an answer to plaintiffs\u2019 complaint on 26 July 2011.\nThe parties proceeded to conduct discovery, during which plaintiffs identified Joshua Braveman, M.D. (\u201cDr. Braveman\u201d), an experienced colorectal surgeon, as an expert to testify regarding the care Robinson received from defendants during her surgeries. On 27 April 2012, defendants filed a motion for summary judgment, asserting that (1) plaintiffs had failed to comply with Rule 9(j)(l) of the North Carolina Rules of Civil Procedure for medical malpractice claims, (2) the doctrine of res ipsa loquitur did not apply to plaintiffs\u2019 action, and (3) plaintiffs could not forecast evidence to satisfy each and every element of their medical negligence claim. The trial court held a hearing on defendants\u2019 motion on 12 June 2012, and a written order granting summary judgment in favor of defendants and dismissing plaintiffs\u2019 action with prejudice was entered by the trial court on 15 June 2012. On 16 July 2012, plaintiffs entered timely written notice of appeal from the trial court\u2019s 15 June 2012 order.\nOn 12 September 2012, defendants filed a motion with the trial court pursuant to Rule 60(b) of the North Carolina Rules of Civil Procedure seeking an advisory opinion and/or a supplemental order with findings of fact and conclusions of law to aid our review of plaintiffs\u2019 present appeal. Defendants then moved this Court for a stay of appellate proceedings until the trial court could consider their Rule 60(b) motion. This Court granted defendants\u2019 motion on 5 November 2012, ordering the case remanded to the trial court for an evidentiary hearing and the entry of findings of fact and conclusions of law thereon. Thereafter, on 14 November 2012, the trial court held a hearing and entered a \u201cSupplemental Order and/or Advisory Opinion,\u201d including findings of fact and conclusions of law supporting the grant of summary judgment in favor of defendants.\nII. Standard of Review\n\u201cSummary judgment is appropriate if \u2018the 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.\u2019 \u201d Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007) (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c)). \u201cThe trial court must consider the evidence in the light most favorable to the non-moving party.\u201d Crocker v. Roethling, 363 N.C. 140, 142, 675 S.E.2d 625, 628 (2009). \u201cThe trial court may not resolve issues of fact and must deny the motion if there is a genuine issue as to any material fact.\u201d Forbis, 361 N.C. at 524, 649 S.E.2d at 385. We review a trial court\u2019s order granting summary judgment de novo. Id. \u201cIf the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.\u201d Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989).\nIll Compliance with Rule 9(T)\nA. Trial Court\u2019s Inconsistent Rulings on Rule 9(j) Compliance\nWe first address plaintiffs\u2019 contention that the trial court\u2019s summary judgment order overruled its previous order denying defendants\u2019 motion to dismiss on the issue of plaintiffs\u2019 compliance with Rule 9(j).\nOn 19 April 2011, defendants moved to dismiss plaintiffs\u2019 action pursuant to Rules 9(j), 12(b)(2), 12(b)(5), 12(b)(6), and 41(b) of the North Carolina Rules of Civil Procedure. Defendants argued that plaintiffs\u2019 complaint failed to comply with Rule 9(j)(l) and did not meet \u201cthe well[-]established pleading requirements under North Carolina law so as to establish negligence under the existing common law doctrine of res ipsa and therefore fails to fall within the exception set forth in Rule 9(j) (3).\u201d In their memorandum supporting their motion to dismiss, defendants presented extensive argument contending that the doctrine of res ipsa loquitur does not apply to plaintiffs\u2019 action because (1) plaintiffs failed to allege either that a surgical instrument or foreign object was left in Robinson\u2019s body following surgery or that her injury was to an area far away from and completely unrelated to the zone of surgery; (2) plaintiffs alleged the proximate cause of Robinson\u2019s injury in their complaint, rather than alleging that no proof of the cause of Robinson\u2019s injury is available; (3) laypersons lack the specialized medical knowledge necessary to infer that the injury Robinson sustained during or as a result of her colectomy procedure is a type that does not ordinarily occur in the absence of negligence; and (4) plaintiffs failed to allege that the instrumentality causing the alleged injury was under defendants\u2019 exclusive control.\nOn 1 July 2011, Judge Robert Hobgood (\u201cJudge Hobgood\u201d) denied defendants\u2019 motion to dismiss. In his written order, Judge Hobgood noted the parties\u2019 arguments as follows:\nThe argument of all Defendants is that the Plaintiffs have failed to abide by Rule 9(j) of the North Carolina Rules of Civil Procedure because the Complaint contains no allegation that an expert witness has been appropriately consulted or identified and described as required by Rule 9(j)(l). Plaintiffs urge that the Complaint sets forth facts which establish negligence under the common law doctrine of res ipsa loquitur.\nJudge Hobgood found as fact that plaintiffs\u2019 complaint\nalleges that the Defendants connected Linda Robinson\u2019s small intestine to her vagina rather than to her anus during a surgery, thereby injuring her, and that such acts, by their very nature, raise a presumption of negligence on the part of the Defendants. The Complaint alleges that all \u00e1dult persons know the elementary anatomy of the body and that it requires neither sophistication, training, nor expertise to understand the factual issues raised by the Complaint. The Defendants argue that the factual circumstances described above did not fall within certain parameters which, the Defendants contend, narrowly prescribe the application of the doctrine of res ipsa loquitur.\nJudge Hobgood then made the following conclusion of law:\nApplying the applicable law to the allegations in the Complaint, the Complaint alleges facts giving notice of negligence under the existing common law doctrine of res ipsa loquitur. As a resultf,] the Defendants\u2019 Motion to Dismiss on the basis of Rules 9(j), 12(b)(6), and 41(b) of the North Carolina Rules of Civil Procedure must be denied.\nFollowing discovery, on 27 April 2012, defendants filed a motion for summary judgment, which was granted by Judge Orlando Hudson (\u201cJudge Hudson\u201d) on 15 June 2012. In his supplemental order/advisory opinion supporting the grant of summary judgment in favor of defendants, Judge Hudson made certain findings of fact that improperly resolved contested issues of fact, including a finding of fact that (1) Robinson \u201cwas diagnosed with a fistula on March 14, 2008, and a reoperation was performed!)]\u201d (2) \u201c[i]n their Complaint, Plaintiffs identify the alleged cause of Mrs. Robinson\u2019s injury: \u2018the botched colectomy is a proximate cause of the Plaintiffs\u2019 injury[;]\u2019 \u201d and (3) \u201cDr. Braveman concedes that the injury at issue can occur in the absence of negligence .. . and confirms that a layperson does not have the skill or knowledge to judge the conduct at issue in this case.\u201d Judge Hudson then made the following conclusions of law:\n31. The doctrine of res ipsa loquitur is not applicable to this case, where the evidence shows: a) this is a medical malpractice case; b) this case does not involve retained surgical instruments or foreign bodies; c) the alleged injury did not occur in an area that was far away from and completely unrelated to the zone of surgery; d) Plaintiffs offered proof of the cause of the injuries complained of; e) Plaintiff\u2019s injury is the type that can and does occur in the absence of negligence.\n33. Plaintiffs\u2019 Complaint should be dismissed as to all Defendants pursuant to Rule 9(j) because: a) this is a medical malpractice case which requires a pre-filing expert review; b) the Complaint lacks the required Rule 9(j) certification; c) Plaintiffs did not obtain the required Rule 9(j) expert review prior to filing the Complaint; d) the applicable statute of [limitations] expired on March 12, 2011; and e) Plaintiffs did not file a Complaint that complied with Rule 9(j) prior to the expiration of the statute of limitations. .\nOur case law is clear that \u201cone judge may not reconsider the legal conclusions of another judge.\u201d Adkins v. Stanly Cnty. Bd. of Educ., 203 N.C. App. 642, 646, 692 S.E.2d 470, 473 (2010). The only limited exception to this rule is for \u201cinterlocutory orders addressed to the discretion of the trial court[.]\u201d Id. Here, however, Judge Hobgood\u2019s order determining that plaintiffs\u2019 complaint properly complied with Rule 9(j)(3) was not a ruling addressed to his discretion. Rather, it was a ruling as a matter of law:\nIn considering whether a plaintiff\u2019s Rule 9(j) statement is supported by the facts, a court must consider the facts relevant to Rule 9(j) and apply the law to them. In such a case, this Court does not inquire as to whether there was any question of material fact, nor do we view the evidence in the light most favorable to the plaintiff. Rather, our review of Rule 9(j) compliance is de novo, because such compliance clearly presents a question of law.\nBarringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 255-56, 677 S.E.2d 465, 477 (2009) (emphasis added) (internal quotation marks and citations omitted).\nIn granting summary judgment in favor of defendants in the present case, Judge Hudson ruled contrary to Judge Hobgood\u2019s prior ruling on the same legal issue to dismiss: whether plaintiffs\u2019 complaint properly complied with the pertinent provisions of Rule 9(j). Judge Hudson was without authority to reconsider Judge Hobgood\u2019s determination on that issue. Although Judge Hudson stated in his supplemental order/advisory opinion that he was \u201cnot reviewing or attempting to overrule the findings and/or order entered by Judge [Hobgood] on July 1, 2011[,]\u201d citing the different standards for consideration of a Rule 12(b)(6) motion and a Rule 56 motion, Judge Hudson did precisely the opposite. While we recognize that \u201c[t]he trial court\u2019s standards for a Rule 12(b)(6) motion to dismiss and a motion for summary judgment axe different and present separate legal questionsf,]\u201d Adkins, 203 N.C. App. at 647, 692 S.E.2d at 473, one trial court judge is nonetheless powerless to make a contrary ruling on an issue of law already resolved by a prior trial court judge\u2019s ruling, despite the denomination of the order as one denying a motion to dismiss or granting summary judgment. See id. at 647-52, 692 S.E.2d at 473-76 (vacating order granting summary judgment in favor of defendants on legal issue of whether plaintiff\u2019s complaint touched on a matter of public concern where previous ruling by another trial court judge denied defendants\u2019 motion to dismiss after considering same legal question and reaching contradictory conclusion).\nIn comparing the two orders side by side in the present case, as well as defendants\u2019 arguments on the issue in both instances, it is clear that Judge Hudson granted summary judgment in favor of defendants in light of his conclusion that the doctrine of res ipsa loquitur was not applicable to the facts alleged and evidence presented by plaintiffs and therefore plaintiffs\u2019 complaint failed to comply with the pertinent provisions of Rule 9Q) - the opposite conclusion reached by Judge Hobgood in his prior order denying defendants\u2019 motion to dismiss on the same legal issue. Accordingly, we must vacate Judge Hudson\u2019s order granting summary judgment in favor of defendants on the legal question of plaintiffs\u2019 compliance with the pertinent provisions of Rule 9(j). See id.\nB. Plaintiffs\u2019 Compliance with Rule 9(j); Application of Res Ipsa Loquitur\nWe next address the propriety of Judge Hobgood\u2019s conclusion that the doctrine of res ipsa loquitur is applicable to the facts alleged in this case, and therefore, plaintiffs\u2019 complaint complied with the pertinent provisions of Rule 9(j) of the North Carolina Rules of Civil Procedure for medical malpractice actions.\nRule 9(j) provides in pertinent part:\nAny complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21. ll(2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:\n(1) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have 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;\n(2) ... or\n(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) (2011). \u201cRule 9(j) unambiguously requires a trial court to dismiss a complaint if the complaint\u2019s allegations do not facially comply with the rule\u2019s heightened pleading requirements.\u201d Barringer, 197 N.C. App. at 255, 677 S.E.2d at 477. \u201cAdditionally, this Court has determined \u2018that even when a complaint facially complies with Rule 9(j) by including a statement pursuant to Rule 9(j), if discovery subsequently establishes that the statement is not supported by the facts, then dismissal is likewise appropriate.\u2019 \u201d Id. (quoting Ford v. McCain, 192 N.C. App. 667, 672, 666 S.E.2d 153, 157 (2008)).\nIn the present case, plaintiffs\u2019 complaint is void of any specific assertion that Robinson\u2019s medical care was reviewed by an expert who would testify that the medical care failed to comply with the applicable standard of care; thus, the pleading does not meet the heightened pleading requirements of Rule 9(j)(l), as defendants contend. However, plaintiffs assert that their'medicai negligence complaint complied with Rule 9(j) (3) by stating a cause of action for negligence under the doctrine of res ipsa loquitur. \u201cAccordingly, we consider de novo whether [plaintiffs\u2019] complaint alleges facts establishing negligence under the doctrine of res ipsa loquit[u]r pursuant to Rule 9(j)(3).\u201d Rowell v. Bowling, 197 N.C. App. 691, 696, 678 S.E.2d 748, 751 (2009).\n\u201cRes ipsa loquitur is a doctrine addressed to those situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of [the] defendant.\u201d Bowlin v. Duke Univ., 108 N.C. App. 145, 149, 423 S.E.2d 320, 322 (1992). The doctrine of res ipsa loquitur, \u201c \u2018in its distinctive sense, permits negligence to be inferred from the physical cause of an [injury], without the aid of circumstances pointing to the responsible human cause. Where this rule applies, evidence of the physical cause or causes of the [injury] is sufficient to carry the case to the jury on the bare question of negligence.\u2019 \u201d Diehl v. Koffer, 140 N.C. App. 375, 377-78, 536 S.E.2d 359, 362 (2000) (quotingHarris v. Mangwn, 183 N.C. 235, 237, 111 S.E. 177,178 (1922)).\n\u201cThe doctrine of res ipsa loquitur applies when \u2018(1) direct proof of the cause of an injury is not available, (2) the instrumentality involved in the accident [was] under the defendant\u2019s control, and (3) the injury is of a type that does not ordinarily occur in the absence of some negligent act or omission.\u2019 \u201d Alston v. Granville Health System, _N.C. App._,_, 727 S.E.2d 877, 879 (quoting Grigg v. Lester, 102 N.C. App. 332, 333, 401 S.E.2d 657, 657-58 (1991)), disc. review dismissed, _N.C._, 731 S.E.2d 421 (2012). \u201cFor the doctrine to apply in a medical malpractice claim, a plaintiff must allege facts from which a layperson could infer negligence by the defendant based on common knowledge and ordinary human experience.\u201d Smith v. Axelbank,_ N.C. App._,_, 730 S.E.2d 840, 843 (2012); see also Diehl, 140 N.C. App. at 378, 536 S.E.2d at 362 (\u201c[Applicability of the res ipsa loquitur doctrine depends on whether[,] as a matter of common experience^] it can be said the [injury] could have happened without dereliction of duty on the part of the person charged with culpability.\u201d (internal quotation marks, citation, and emphasis omitted)). \u201c \u2018Therefore, in order for the doctrine to apply, not only must plaintiff have shown that [the] injury resulted from defendant\u2019s [negligent act], but plaintiff must [be] able to show \u2014 without the assistance of expert testimony \u2014 that the injury was of a type not typically occurring in absence of some negligence by defendant.\u2019 \u201d Howie v. Walsh, 168 N.C. App. 694, 698, 609 S.E.2d 249, 252 (2005) (alterations in original) (quoting Diehl, 140 N.C. App. at 378, 536 S.E.2d at 362); see also Hayes v. Peters, 184 N.C. App. 285, 287-88, 645 S.E.2d 846, 848 (2007) (\u201cIn order for the doctrine to apply, an average juror must be able to infer, through his common knowledge and experience and without the assistance of expert testimony, whether negligence occurred.\u201d).\nOur Courts have consistently found that \u201cres ipsa loquitur is inappropriate in the usual medical malpractice case, where the question of injury and the facts in evidence are peculiarly in the province of expert opinion.\u201d Bowlin, 108 N.C. App. at 149-50, 423 S.E.2d at 323; see also Rowell, 197 N.C. App. at 696, 678 S.E.2d at 751 (\u201cNormally, in [medical malpractice] actions, both the standard of care and its breach must be established by expert testimony.\u201d (internal quotation marks and citation omitted)). However,\n[t]he common knowledge, experience and sense of laymen qualifies them to conclude that some medical injuries are not likely to occur if proper care and skill is used; included, inter alia, are injuries resulting from surgical instruments or other foreign objects left in the body following surgery and injuries to a part of the patient\u2019s anatomy outside of the surgical field.\nGrigg, 102 N.C. App. at 335, 401 S.E.2d at 659.\nApplication of res ipsa in medical malpractice actions has received special attention, resulting in what our Supreme Court has characterized as a somewhat restrictive application of the doctrine. The precautions in applying res ipsa to a medical malpractice action stem from an awareness that the majority of medical treatment involves inherent risks which even adherence to the appropriate standard of care cannot eliminate. This, coupled with the scientific and technical nature of medical treatment, renders the average juror unfit to determine whether [a] plaintiff\u2019s injury would rarely occur in the absence of negligence. Unless the jury is able to make such a determination[, a] plaintiff clearly is not entitled to the inference of negligence res ipsa affords.\nSchaffner v. Cumberland County Hosp. System, 77 N.C. App. 689, 692, 336 S.E.2d 116, 118 (1985) (internal quotation marks and citations omitted). \u201cThe reason given for the doctrine\u2019s limited availability is the principle that a health care provider is not an insurer of results[.]\u201d Parks v. Perry, 68 N.C. App. 202, 206, 314 S.E.2d 287, 289 (1984).\nNonetheless, our Supreme Court has long recognized that\nwhere proper inferences may be drawn by ordinary men from proved facts which give rise to res ipsa loquitur without infringing this principle, there should be no reasonable argument against the availability of the doctrine in medical and surgical cases involving negligence, just as in other negligence cases, where the thing which caused the injury does not happen in the ordinary course of things, where proper care is exercised.\nMitchell v. Saunders, 219 N.C. 178, 182, 13 S.E.2d 242, 245 (1941); see also Parks, 68 N.C. App. at 206, 314 S.E.2d at 289. \u201cOnce plaintiff\u2019s proof has addressed these concerns, ... no bar to application of res ipsa in medical malpractice actions exists.\u201d Schaffner, 77 N.C. App. at 692, 336 S.E.2d at 118.\nBecause \u201cthe res ipsa loquitur doctrine is only applicable where \u2018there is no direct proof of the cause of the injury available to the plaintiff[,]\u2019 \u201d Yorke v. Novant Health, Inc., 192 N.C. App. 340, 352, 666 S.E.2d 127, 135 (2008) (quoting Parks, 68 N.C. App. at 207, 314 S.E.2d at 290), \u201cwhere evidence constituting direct proof of the cause of injury is presented, \u2018the doctrine of res ipsa loquitur [is] not applicable.\u2019 \u201d Alston, _N.C. App. at_, 727 S.E.2d at 880 (alteration in original) (quoting Yorke, 192 N.C. App. at 353, 666 S.E.2d at 136). In addition, when evaluating whether the injury is of a type that does not ordinarily occur in the absence of negligence, our Court has applied a twofold test in medical malpractice cases: \u201c(1) the injurious result must rarely occur standing alone and (2) the result must not be an inherent risk of the operation.\u201d Parks, 68 N.C. App. at 206, 314 S.E.2d at 290.\nIn the present case, defendants argue res ipsa loquitur is not applicable in Robinson\u2019s case because (1) the injury that Robinson sustained does not involve either of the two circumstances for which the application of res ipsa has been expressly approved by this Court; (2) Robinson\u2019s colectomy procedure is outside the knowledge and experience of laymen, thereby requiring expert testimony to show that her injury could not have occurred in the absence of negligence; and (3) plaintiffs offered direct proof of the cause of Robinson\u2019s injury. We address these arguments in turn.\n1. Limitation of Circumstances in Which Doctrine Applies\nRelying on this Court\u2019s opinion in both Grigg, 102 N.C. App. 332, 401 S.E.2d 657, and Hayes, 184 N.C. App. 285, 645 S.E.2d 846, defendants contend that \u201cour courts have applied res ipsa loquitur to medical malpractice cases in only two types of cases: 1) where injuries result from surgical instruments or other foreign objects left in the body following surgery; and 2) where there is an injury to an area far away from and completely unrelated to the zone of surgery.\u201d Defendants assert that \u201c[ijmportantly, these are the only two scenarios in which North Carolina courts determined that a layperson\u2019s common knowledge would permit an inference of negligence.\u201d Defendants urge that because the present case does not involve either of these two circumstances, res ipsa loquitur is inapplicable.\nIn Hayes, we noted that \u201c[t]his Court has encouraged \u2018trial courts to remain vigilant and cautious about providing res ipsa loquitur as an option for liability in medical malpractice cases other than in those cases where it has been expressly approved.\u2019 \u201d Id. at 288, 645 S.E.2d at 848 (quoting Howie, 168 N.C. App. at 699, 609 S.E.2d at 252). In support of this statement, we cited this Court\u2019s opinion in Grigg as \u201cnoting that the doctrine of res ipsa loquitur is approved in two limited circumstances: (1) injuries resulting from surgical instruments or other foreign objects left in the body following surgery; and (2) injuries to a part of the patient\u2019s anatomy outside of the surgical field.\u201d Hayes, 184 N.C. App. at 288, 645 S.E.2d at 848 (citing Grigg, 102 N.C. App. at 335, 401 S.E.2d at 659).\nHowever, any limitation of the application of res ipsa loquitur to only these two types of medical malpractice cases is not supported by the plain language of our case law. Although Hayes cautions trial courts in applying res ipsa loquitur in medical malpractice actions involving injuries other than those two categories, Hayes does not hold that these two types of cases are the only ones in which res ipsa loquitur can apply. To the contrary, the plain language of Grigg, cited by Hayes, states:\nThe common knowledge, experience and sense of laymen qualifies them to conclude that some medical injuries are not likely to occur if proper care and skill is used; included, inter alia, are injuries resulting from surgical instruments or other foreign objects left in the body following surgery and injuries to a part of the patient\u2019s anatomy outside of the surgical field.\nGrigg, 102 N.C. App. at 335, 401 S.E.2d at 659 (emphasis added). Indeed, our Supreme Court has long held that \u201cwhere proper inferences may be drawn by ordinary men from proved facts which give rise to res ipsa loquitur . . . , there should be no reasonable argument against the availability of the doctrine in medical and surgical cases involving negligencef.]\u201d Mitchell, 219 N.C. at 182, 13 S.E.2d at 245. Thus, defendants\u2019 argument that res ipsa is inapplicable in the present case because it does not involve either a foreign object left in the body following surgeiy or an injury to an area far away from and completely unrelated to the zone of surgery is without merit.\n2. Requirement of Expert Testimony\nDefendants further argue that Robinson\u2019s medical treatment at issue in the present case involved a colectomy, \u201ca complex surgical procedure.\u201d Defendants contend that \u201c[a]verage jurors do not have knowledge to enable them to identify and distinguish internal anatomy such as the vaginal cuff, colon, small intestines, adhesions and rectum as it would appear through a laparoscope.\u201d In addition, defendants argue that \u201c[l]aymen have no experience in dissecting adhesions, removal of the colon, or creating an anastomosis (connection) between the small bowel and rectum[,]\u201d and that \u201c[ajverage jurors are not familiar with using a surgical stapler (EEA), including knowledge of how to properly insert, align, and/or use it to create \u00e1 connection between body tissues.\u201d Accordingly, defendants urge that expert testimony is necessary to determine whether negligence occurred in the present case, thereby precluding the application of res ipsa loquitur. We disagree.\nAs plaintiffs\u2019 complaint asserts, it is common knowledge and experience that intestines are meant to connect with the anus, not the vagina, even following a surgical procedure to correct a bowel problem. Likewise, as plaintiffs\u2019 complaint asserts, it requires no expert testimony to understand that feces are not meant to be excreted from the vagina and that such an injury does not ordinarily occur in the absence of a negligent act or omission during a surgical procedure. Despite defendants\u2019 attempts to employ medical terminology to the issue, the simple fact is that following her surgical procedure, Robinson\u2019s intestine was left connected to her vagina, causing her to excrete feces through her vagina. Cf. Hayes, 184 N.C. App. at 288, 645 S.E.2d at 848 (expert testimony necessary for the average juror to determine whether a stroke from air emboli during an esophagastroduodenoscopy surgical procedure was an injury that would not normally occur in the absence of negligence); Howie, 168 N.C. App. at 698-99, 609 S.E.2d at 252 (expert testimony necessary for a layperson to determine whether the defendant dentist used excessive or improper force in employing a \u201cCryers elevator\u201d instrument during a wisdom tooth extraction resulting in nerve damage and a fractured jaw); Bowlin, 108 N.C. App. at 149, 423 S.E.2d at 322-23 (layman would have no basis for concluding that defendant was negligent in causing injury to plaintiff\u2019s sciatic nerve while extracting marrow during a bone marrow harvest procedure); Grigg, 102 N.C. App. at 335, 401 S.E.2d at 659 (expert testimony necessary for a layman to determine whether the force exerted by the defendant obstetrician during cesarean section child delivery was either improper or excessive so as to cause a uterine tear). Contrary to defendants\u2019 assertion, we find the circumstances presented in Hayes, Howie, Bowlin, and Grigg distinguishable from those presented in the present case. In each of those four cases, an understanding of the procedures involved and the proper techniques to be employed during those procedures was necessary for a determination by the jury as to whether the injury at issue in each case could have occurred in the absence of some negligence by the defendant health care provider. Here, however, although Robinson underwent a colectomy procedure, an understanding of the requisite techniques employed during the procedure is not required for a layman to determine that Robinson\u2019s small intestine should not have been connected to her vagina during the procedure and that such an anatomical result following surgery does not normally occur in the absence of negligence.\nIn further support of their contention that expert testimony is required for an understanding of the procedure and the injury involved in this case, defendants point to Dr. Braveman\u2019s testimony that he reviewed Robinson\u2019s medical records and relied on his own expertise in the field of colorectal surgery to confirm that negligence occurred during Robinson\u2019s colectomy. Defendants also highlight that Dr. Braveman acknowledged that a \u201crectovaginal fistula\u201d can occur in the absence of negligence following a colectomy procedure. Nonetheless, Dr. Braveman also testified that an injury such as the one Robinson sustained from her original surgical procedure does not occur in the absence of some negligence by the surgeon ninety-five percent of the time. In addition, Dr. Braveman testified that passing stool through the vagina immediately following surgery is rare, although it can occur, and raises a strong suspicion that the surgery was done improperly. Dr. Braveman further testified that Robinson\u2019s injurious condition, in having her intestine directly connected to her vagina, is never a risk of a colectomy procedure. Thus, plaintiffs\u2019 forecast of evidence sufficiently demonstrates (1) that Robinson\u2019s injury \u2014 that her small intestine was attached to her vagina rather than to her rectum causing feces to pass through her vagina, rarely, if ever, occurs standing alone, outside of negligence during the operation which was being performed, and (2) that such a result is not an inherent risk of the operation. See Schaffner, 77 N.C. App. at 692, 336 S.E.2d at 118.\nThe fact that plaintiffs\u2019 proffer of expert testimony describes Robinson\u2019s procedure, the anatomy involved, and the injurious result does not detract from the fact that a layperson can understand, without the assistance of such expert testimony, that following a procedure to remove a portion of the intestine or colon, a patient\u2019s intestine should not be reattached to her vagina, resulting in the passing of feces through the vagina, if the procedure was done properly. Indeed, Dr. Braveman agreed that a layperson needs no special expertise to understand that the small intestine being connected to the vagina is not anatomically correct. \u201cWhen, as here, the facts can be evaluated based on common experience and knowledge, expert testimony is not required.\u201d Schaffner, 77 N.C. App. at 692, 336 S.E.2d at 118.\n3. Direct Proof of Cause of Injury\nFinally, defendants argue that because plaintiffs offered direct proof of Robinson\u2019s injury, the doctrine of res ipsa loquitur is inapplicable in the present case. Defendants state that plaintiffs\u2019 complaint contends that \u201c \u2018the botched colectomy is a proximate cause of the Plaintiffs\u2019 injury,\u2019 and that Defendants were negligent by attaching \u2018Linda Robinson\u2019s colon to her vagina in such a way that feces came through her vagina.\u2019 \u201d Defendants also point to Dr. Braveman\u2019s testimony opining that the surgical error occurred by inserting a stapler through the vagina instead of the rectum.\nHowever, defendants\u2019 argument conflates proffered evidence of the \u201ccause\u201d of Robinson\u2019s injury with the injurious condition itself. Robinson\u2019s injurious condition involved the direct attachment of her small intestine to her vagina, resulting in the passing of feces through her vagina. Plaintiffs allege that the colectomy procedure was \u201cbotched,\u201d resulting in this injurious condition. Although plaintiffs\u2019 proffered evidence from Dr. Braveman indicates that Dr. Mantyh and/or Dr. Huang improperly inserted the surgical stapler into her vagina, rather than her rectum, thereby causing the injurious result, Dr. Mantyh\u2019s testimony directly contradicts Dr. Braveman\u2019s testimony. Dr. Mantyh testified as to his opinion that because Robinson had undergone prior gynecological surgeries, her vaginal cuff had \u201cfused\u201d with a portion of her rectum and was then caught within the surgical stapler during the colectomy procedure, thereby creating a three-way communication between the small intestine, rectum, and vagina. Dr. Braveman\u2019s testimony, however, directly contradicts this testimony, opining that Robinson\u2019s small intestine was directly connected to her vagina and that her rectum was left unattached to anything. Such conflicting testimony, at a minimum, creates a question of material fact for a jury as to the precise cause of Robinson\u2019s injurious condition. \u201cThe inference created by res ipsa will defeat a motion for summary judgment even though the defendant presents evidence tending to establish absence of negligence.\u201d Schaffner, 77 N.C. App. at 691-92, 336 S.E.2d at 118.\nPlaintiffs\u2019 proffer of Dr. Braveman\u2019s testimony in no way establishes direct proof of the precise cause of Robinson\u2019s injury. Rather, such testimony constitutes plaintiffs\u2019 proffer of evidence as to how the injury might have occurred. Notably, in res ipsa cases, \u201c[t]he fact of the casualty and the attendant circumstances may themselves furnish all the proof that the injured person is able to offer or that is necessary to offer.\u201d Pendergraft v. Royster, 203 N.C. 384, 394, 166 S.E.2d 285, 290 (1932) (internal quotation marks and citation omitted). Allegations addressing plaintiffs\u2019 evidence as to the attendant circumstances of Robinson\u2019s injury is not equivalent to direct proof of the cause of the injury. Cf. Rowell, 197 N.C. App. at 697, 678 S.E.2d at 752 (holding that the doctrine of res ipsa loquitur was not applicable where the plaintiff specifically alleged that a particular incision made by the defendant doctor to the plaintiff\u2019s left knee was the exact cause of her injury). Here, unlike the circumstances presented in Rowell, plaintiffs allege that Robinson\u2019s \u201cbotched\u201d colectomy was the cause of her injurious condition, and plaintiffs\u2019 proffer of expert testimony provides only a theory of the attendant circumstances that resulted in Robinson\u2019s injury during her surgical procedure. Plaintiffs have neither alleged nor presented direct evidence of the precise human cause of Robinson\u2019s injury.\nMoreover, Robinson was unconscious during her surgical procedure and would have no way of presenting direct evidence as to the precise human cause of her injurious condition. Cf. Yorke, 192 N.C. App. at 353, 666 S.E.2d at 136 (distinguishing the factual circumstances presented in Parks, 68 N.C App. 202, 314 S.E.2d 287, \u201cwhere the plaintiff was under general anesthesia at the time her injury occurred and therefore could not offer direct proof of its cause,\u201d with the factual circumstances therein presented, in which the patient \u201cwas fully aware of the cause of his alleged injury. In fact, [the patient] identified his blood pressure cuff as the source of his injury numerous times to medical personnel over the four days that his injury allegedly occurred. When a plaintiff offers direct evidence of the negligence that led to his injury, the doctrine of res ipsa loquitur is inapplicable\u201d). Here, unlike the circumstances presented in Yorke, Robinson is unable to offer direct evidence of the negligence that led to her injury, hence plaintiffs\u2019 reliance on the doctrine of res ipsa loquitur and the proffer of Dr. Braveman\u2019s testimony.\nAs this Court has previously noted: \u201c[Res ipsa] must not be supposed to require that plaintiff. . . must rely altogether upon this prima facie showing ... of negligence, for [s]he may resort to other proof for the purpose of particularizing the negligent act and informing the jury as to the special cause of [her] injury.\u201d Schaffner, 77 N.C. App. at 694, 336 S.E.2d at 119 (alterations and ellipsis in original) (internal quotation marks and citation omitted). Here, plaintiffs\u2019 proffer of Dr. Braveman\u2019s testimony opining as to the particular human cause of Robinson\u2019s injurious condition does not preclude the application of the res ipsa doctrine in this case, where the negligence may be inferred from the physical cause of Robinson\u2019s injury \u2014 the direct attachment of her small intestine to her vagina. Diehl, 140 N.C. App. at 377-78, 536 S.E.2d at 362.\nWe hold plaintiffs\u2019 complaint sufficiently alleges, and plaintiffs\u2019 forecast of evidence sufficiently demonstrates, that (1) Robinson\u2019s injury is not an inherent risk of a colectomy procedure and occurs rarely, if ever, in the absence of negligence; (2) the surgical procedure resulting in Robinson\u2019s injury was exclusively within defendants\u2019 control; (3) because Robinson was unconscious, she has no direct proof as to the precise cause of her injurious condition; and (4) no expert testimony is required in order to understand that Robinson\u2019s injurious condition is likely the result of defendants\u2019 negligent act or omission during the course of her surgical procedure. This is certainly not a case in which the mere result of Robinson\u2019s treatment \u201cwas not satisfactory or less than could be desired, or different from what might be expected.\u201d Mitchell, 219 N.C. at 182, 13 S.E.2d at 245. Accordingly, no bar exists to plaintiffs\u2019 assertion of the res ipsa loquitur doctrine in this case, and plaintiffs\u2019 complaint and forecast of evidence both satisfy the requirements of Rule 9(j)(3) and survive defendants\u2019 motion for summary judgment on that issue. \u201cIssues of negligence should ordinarily be resolved by a jury and are rarely appropriate for summary judgment.\u201d Schaffner, 77 N.C. App. at 691, 336 S.E.2d at 117; see also Parks, 68 N.C. App. at 205, 314 S.E.2d at 289 (noting that in Easter v. Hospital, 303 N.C. 303, 305, 278 S.E.2d 253, 255 (1981), a medical negligence case, \u201c[our] Supreme Court recognized the general rule that only in exceptional negligence cases is summary judgment appropriate\u201d).\nIV. Forecast of Evidence Satisfying Elements of Medical Negligence Claim Against Dr. Mantvh and Dr. Huang\nWe next address whether plaintiffs presented sufficient evidence of their medical negligence claim to survive defendants\u2019 motion for sum- - mary judgment.\nIn order to maintain an action for medical malpractice, a plaintiff must offer evidence to establish (1) the applicable standard of care; (2) breach of that standard; (3) proximate causation; and (4) damages. Atkins v. Mortenson, 183 N.C. App. 625, 630, 644 S.E.2d 625, 629, appeal dismissed, 361 N.C. 690, 652 S.E.2d 255 (2007). In the present case, defendants contend that plaintiffs failed to present competent evidence on the applicable standard of care and breach of that standard, thereby rendering summary judgment in defendants\u2019 favor proper. In Judge Hudson\u2019s supplemental order/advisory opinion, he likewise concluded that summary judgment in favor of defendants was proper, in the alternative, because plaintiffs failed to establish evidence of the applicable standard of care in that Dr. Braveman, plaintiffs\u2019 sole standard of care expert, \u201cis not qualified to offer standard of care opinions pursuant to N.C.G.S. \u00a7 90-21.12 and Rule 702(b) of the North Carolina Rules of Evidence on grounds that he impermissibly applied a national standard of care\u201d and that Dr. Braveman \u201coffered no evidence of his familiarity with either the training and experience of the Defendant, Dr. Mantyh, or the community standard of care in Durham, North Carolina, or a similar community.\u201d Judge Hudson likewise concluded that plaintiffs failed to offer any evidence \u201cof any breach of the standard of care by Dr. Huang.\u201d\n\u201cOne of the essential elements of a claim for medical negligence is that the defendant breached the applicable standard of medical care owed to the plaintiff.\u201d Goins v. Puleo, 350 N.C. 277, 281, 512 S.E.2d 748, 751 (1999). To meet their burden of proving the applicable standard of care, plaintiffs must satisfy the requirements of N.C. Gen. Stat. \u00a7 90-21.12 (2011), which provides:\n[I]n any medical malpractice action as defined in G.S. 90-21.ll(2)(a), the defendant health care provider shall not be hable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action[.]\nId. \u00a7 90-21.12(a) (emphasis added).\nPlaintiffs must establish the relevant standard of care through expert testimony. When plaintiffs have introduced evidence from an expert stating that the defendant doctor did not meet the accepted medical standard, [t]he evidence forecast by the plaintiffs establishes a genuine issue of material fact as to whether the defendant doctor breached the applicable standard of care and thereby proximately caused the plaintiffs\u2019 injuries. This issue is ordinarily a question for the jury, and in such case, it is error for the trial court to enter summary judgment for the defendant.\nCrocker, 363 N.C. at 142-43, 675 S.E.2d at 628 (alteration in original) (internal quotation marks and citations omitted).\nIn the present case, Dr. Braveman testified during his deposition that he knew nothing about Dr. Mantyh\u2019s education, training, or experience at that time. Dr. Braveman testified that he had never visited Duke University Health System or any of its facilities and knew nothing about their surgical facilities. Dr. Braveman stated that he had not reviewed the website or read any materials about Duke. Dr. Braveman stated that all he knew about Duke was that it had \u201ca great reputation.\u201d Dr. Braveman stated that he knew Duke was \u201ca tertiary care facility and takes care of all aspects of medical problems.\u201d Dr. Braveman stated that the only information he had about Duke was that \u201cit\u2019s a university health system and it\u2019s got a national reputation].]\u201d Dr. Braveman further testified that he believed there existed a national standard of care with respect to colorectal surgeons and that the standard of care prevalent at Duke University \u201cshould not be different\u201d from the standard of care prevalent at the three medical centers with which he was familiar.\nSubsequent to his deposition, Dr. Braveman submitted an affidavit stating that he was \u201cfamiliar with the standard of care for physicians such as Dr. Mantyh practicing in Durham, North Carolina, the Research Triangle area, and similar communities such as Worcester, Massachusetts];] Cleveland, Ohio];] and Columbus, Ohio in 2008 with respect to the type of procedure Dr. Mantyh performed on Linda Robinson on or about March 12, 2008.\u201d Dr. Braveman further stated in his affidavit that \u201c[a]t the time of [his] testimony, [he] had specific familiarity with the standard of care in the three communities in which [he had] practiced and was of the opinion then that the standard of care was similar across those communities and Durham, North Carolina.\u201d Dr. Braveman\u2019s affidavit explained that since giving his deposition testimony, \u201c[he had] confirmed [his] opinion with Internet research regarding Duke University Hospital and [had] confirmed that it is a sophisticated training hospital such as the other ones with which [he had] personal familiarity.\u201d\nWhere summary judgment is granted on the basis that a doctor\u2019s testimony was to a national rather than a community standard of care,\nthe critical inquiry is whether the doctor\u2019s testimony, taken as a whole, meets the requirements of N.C. Gen. Stat. \u00a7 90-21.12. In making such a determination, a court should consider whether an expert is familiar with a community that is similar to a defendant\u2019s community in regard to physician skill and training, facilities, equipment, funding, and also the physical and financial environment of a particular medical community.\nPitts v. Nash Day Hosp., Inc., 167 N.C. App. 194, 197, 605 S.E.2d 154, 156 (2004), aff'd per curiam, 359 N.C. 626, 614 S.E.2d 267 (2005). In our recent opinion in Higginbotham v. D\u2019Amico,_N.C. App._,_ S.E.2d_, No. COA12-1099 (N.C. Ct. App. Apr. 16, 2013), we explained:\nThe mere use of the phrase \u201cnational standard of care\u201d is not fatal to an expert\u2019s testimony if the expert\u2019s testimony otherwise meets the demands of section 90-21.12.\nIn the alternative, [w]here the standard of care is the same across the country, an expert witness familiar with that standard may testify despite his lack of familiarity with the defendant\u2019s community.\nId. at_,_S.E.2d at_, No. COA12-1099, slip op. at 6 (alteration in original) (internal quotation marks and citations omitted). We conclude Dr. Braveman\u2019s testimony meets this standard.\nDefendants argue that Dr. Braveman\u2019s affidavit is impermissible because it contradicts his former deposition testimony. See Pinczkowski v. Norfolk S. Ry. Co., 153 N.C. App. 435, 440, 571 S.E.2d 4, 7 (2002) (\u201c[A] party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.\u201d); Barringer, 197 N.C. App. at 257-58, 677 S.E.2d at 478. However, we conclude that rather than contradicting his testimony, Dr. Braveman\u2019s affidavit actually supplements it. In his affidavit, Dr. Braveman reaffirms his belief that the applicable standard of care is similar to that of the medical facilities with which he was familiar and that he had confirmed his beliefs through Internet research. \u201c[O]ur law does not prescribe any particular method by which a medical doctor must become familiar with a given community. Book or Internet research may be a perfectly acceptable method of educating oneself regarding the standard of medical care applicable in a particular community.\u201d Grantham v. Crawford, 204 N.C. App. 115, 119, 693 S.E.2d 245, 248-49 (2010) (alteration in original) (internal quotation marks and citations omitted). Although Dr. Braveman testified as to his opinion regarding a national standard of care for colorectal surgeons, Dr. Braveman reinforced his opinion through his affidavit, pointing to particular research he had conducted on Duke University and Dr. Mantyh. We fail to see how Dr. Braveman\u2019s affidavit contradicted his testimony. Considered as a whole, Dr. Braveman\u2019s testimony satisfied the requirements of N.C. Gen. Stat. \u00a7 90-21.12.\nHaving sufficiently presented expert testimony to satisfy their burden of establishing the standard of care for colorectal surgeons performing a colectomy procedure at Duke University on 12 March 2008, plaintiffs likewise presented sufficient evidence that both Dr. Mantyh and Dr. Huang breached that standard. Specifically, Dr. Braveman testified as to his opinion that Dr. Mantyh directly breached the standard of care by not ensuring that the surgical stapler was placed correctly anatomically. Thus, because plaintiffs presented expert testimony establishing a standard of care and breach of that standard by Dr. Mantyh, the trial court erred in granting summary judgment in favor of that defendant on that basis. Crocker, 363 N.C. at 142-43, 675 S.E.2d at 628.\nIn addition, plaintiffs presented sufficient evidence that Dr. Huang incorrectly placed the surgical stapler into Robinson\u2019s vagina, thereby causing the injurious result.\nExpert testimony is not required ... to establish the standard of care, failure to comply with the standard of care, or proximate cause, in situations where a jury, based on its common knowledge and experience, is able to decide those issues. The application of this \u201ccommon knowledge\u201d exception to the requirement of expert testimony in medical malpractice cases has been reserved for those situations in which a physician\u2019s conduct is so grossly negligent or the treatment is of such a nature that the common knowledge of laypersons is sufficient to find the standard of care required, a departure therefrom, or proximate causation.\nBailey v. Jones, 112 N.C. App. 380, 387, 435 S.E.2d 787, 792 (1993) (emphasis added) (citations omitted). Here, plaintiffs\u2019 proffer of evidence tends to show that Dr. Huang breached the applicable standard of care in incorrectly placing the surgical stapler into Robinson\u2019s vagina and failing to ensure its proper anatomical placement. A jury, based on its common knowledge, could decide from this evidence that Dr. Huang breached the standard of care owed to Robinson. Accordingly, the trial court erred in granting summary judgment in favor of defendants as to plaintiffs\u2019 claim for medical negligence against Dr. Mantyh and Dr. Huang.\nV. Summary Judgment in Favor of DUHS\nIn his supplemental order/advisory opinion, Judge Hudson concluded that summary judgment in favor of DUHS was proper because \u201cDr. Mantyh is not an agent or apparent agent of Defendant DUHS.\u201d Judge Hudson found as a fact that \u201cDUHS did not have any relationship with Dr. Mantyh on March 12,2008.\u201d Despite that finding, however, in his affidavit, Dr. Huang stated that at all times relevant to the events alleged in plaintiffs\u2019 complaint, he was employed by DUHS. Because plaintiffs presented sufficient evidence establishing a medical negligence claim against Dr. Huang, plaintiffs\u2019 claim of vicarious liability as to DUHS on behalf of Dr. Huang, at a minimum, should proceed.\nIn addition, our Courts have noted that \u201capparent agency would be applicable to hold the hospital liable for the acts of an independent contractor if the hospital held itself out as providing [the] services and care.\u201d Diggs v. Novant Health, Inc., 177 N.C. App. 290, 305, 628 S.E.2d 851, 861 (2006).\nUnder this approach, a plaintiff must prove that (1) the hospital has held itself out as providing medical services, (2) the plaintiff looked to the hospital rather than the individual medical provider to perform those services, and (3) the patient accepted those services in the reasonable belief that the services were being rendered by the hospital or by its employees. A hospital may avoid liability by providing meaningful notice to a patient that care is being provided by an independent contractor.\nId. at 307, 628 S.E.2d at 862.\nHere, plaintiffs presented evidence that Dr. Mantyh was the Chief of Gastrointestinal and Colorectal Surgery at the hospital and was an assistant professor with tenure in surgery at Duke University, from which he receives a paycheck. In addition, plaintiffs presented evidence showing that DUHS lists Dr. Mantyh as one of its physicians on its website. \u201c[A] jury could reasonably find [that these facts] indicated to the public that [DUHS] was providing [surgical] services to its patients.\u201d Id. at 307-08, 628 S.E.2d at 862. Plaintiffs also proffered evidence tending to show that Robinson was referred by another physician to DUHS and/or Dr. Mantyh for evaluation of her colonic inertia problems. Thus, there is no evidence in the record tending to show that Robinson specifically sought out Dr. Mantyh to perform her surgical treatment. Indeed, throughout the present litigation, plaintiffs have continually asserted that Dr. Mantyh is an agent and/or employee of DUHS. The trial court erred in granting summary judgment in favor of DUHS.\nVI. Punitive Damages Claim\nPlaintiffs have failed to present any argument that the trial court\u2019s grant of summary judgment in favor of defendants on their punitive damages claim was improper. Indeed, plaintiffs\u2019 complaint and forecast of evidence fails to provide any facts that defendants\u2019 conduct in causing Robinson\u2019s injurious condition was willful, wanton, malicious, or fraudulent. Accordingly, we affirm the trial court\u2019s grant of summary judgment in favor of defendants as to plaintiffs\u2019 claim for punitive damages.\nVIL Conclusion\nIn summary, we hold Judge Hudson\u2019s order granting summary judgment in favor of defendants on the basis of plaintiffs\u2019 compliance with Rule 9(j) must be vacated, as it impermissibly overruled Judge Hobgood\u2019s order denying defendants\u2019 motion to dismiss on the same legal issue. We hold that plaintiffs\u2019 complaint sufficiently alleges, and plaintiffs\u2019 forecast of evidence sufficiently demonstrates, that no bar exists to plaintiffs\u2019 assertion of the doctrine of res ipsa loquitur in this case. Thus, plaintiffs\u2019 complaint satisfies the requirements of Rule 9(j)(3) for medical malpractice actions and plaintiffs\u2019 forecast of evidence is sufficient to survive defendants\u2019 motion for summary judgment on that issue.\nJudge Hudson\u2019s order granting summary judgment in favor of defendant Dr. Mantyh is reversed, as plaintiffs presented sufficient evidence to satisfy all elements of a medical malpractice claim against him. Accordingly, plaintiffs\u2019 claim for medical negligence against Dr. Mantyh may proceed. Judge Hudson\u2019s order granting summary judgment in favor of defendant Dr. Huang is likewise reversed, as plaintiffs presented sufficient evidence that Dr. Huang breached the applicable standard of care in improperly placing the surgical stapler into Robinson\u2019s vagina. Judge Hudson\u2019s order granting summary judgment in favor of DUHS is also reversed, as Dr. Huang was admittedly employed by DUHS at the time of the alleged medical negligence, and plaintiffs\u2019 evidence sufficiently demonstrates that Dr. Mantyh was an apparent agent of DUHS.\nWe further hold that Judge Hudson\u2019s order granting summary judgment in favor of defendants DUAP and Dr. Patel is affirmed, as plaintiffs expressly did not present any argument as to why summary judgment is not appropriate as to those defendants. Plaintiffs\u2019 action therefore remains dismissed as against defendants DUAP and Dr. Patel. Judge Hudson\u2019s order granting summary judgment in favor of defendants on plaintiffs\u2019 claim for punitive damages is likewise affirmed, as plaintiffs presented no argument as to why summary judgment is not appropriate on that issue, and plaintiffs failed to allege and/or present any evidence that defendants\u2019 conduct in this case was willful, wanton, malicious, or fraudulent. Therefore, plaintiffs\u2019 claim for punitive damages remains dismissed. Finally, Judge Hobgood\u2019s order granting defendants\u2019 motion to dismiss plaintiffs\u2019 action as to defendant Dr. Hodgins is likewise affirmed, as plaintiffs did not appeal from that order dismissing the action against that defendant. Plaintiffs\u2019 action remains dismissed as against Dr. Hodgins.\nWe remand the present case to the trial court for further proceedings against defendants Dr. Mantyh, Dr. Huang, and DUHS, consistent with this opinion.\nAffirmed in part, vacated in part, reversed in part, and remanded.\nJudge CALABRIA concurs in result only.\n. Plaintiffs expressly do not appeal the grant of summary judgment in favor of DUAP or Dr. Patel, and therefore, plaintiffs\u2019 action stands dismissed as against those defendants.", "type": "majority", "author": "McCullough, judge." }, { "text": "STEELMAN, Judge,\nconcurring in the result.\nI concur with the result reached in parts IIIA, IV, V, and VI of the majority opinion. Given the holding in part IIIA of the opinion, the analysis and holdings in part IIIB of the opinion are unnecessary. See O\u2019Neill v. S. Nat\u2019l Bank, 40 N.C. App. 227, 230, 252 S.E.2d 231, 233 (1979) (\u201cAn Order denying a Rule 12(b)(6) motion is interlocutory and clearly not appealable.\u201d).", "type": "concurrence", "author": "STEELMAN, Judge," } ], "attorneys": [ "Willcox, Buyck & Williams, P.A., by Reynolds Williams, pro hac vice; and Thomas & Farris, by Albert S. Thomas and Allen G. Thomas, for plaintiff appellants.", "McGuireWoods LLP, by Mark E. Anderson, Heather R. Wilson, and Monica E. Webb, for defendant appellees." ], "corrections": "", "head_matter": "LINDA M. ROBINSON and FRANK ROBINSON, Plaintiffs v. DUKE UNIVERSITY HEALTH SYSTEMS, INC. d/b/a DUKE UNIVERSITY MEDICAL CENTER; DUKE UNIVERSITY AFFILIATED PHYSICIANS, INC.; CHRISTOPHER MANTYH, MD; ERICH S. HUANG, MD; MAYUR B. PATEL, MD; LEWIS HODGINS, MD; JANE AND JOHN DOE, Defendants\nNo. COA12-1239\nFiled 20 August 2013\n1. Civil Procedure \u2014 motion to dismiss \u2014 improperly overruling previous order\nThe trial court\u2019s summary judgment order in a medical malpractice case improperly overruled a previous order denying defendants\u2019 motion to dismiss on the issue of plaintiffs\u2019 compliance with N.C.G.S. \u00a7 1A-1, Rule 9(j). One judge may not reconsider the legal conclusions of another judge. Thus, Judge Hudson\u2019s order granting summary judgment in favor of defendants on the legal question of plaintiffs\u2019 compliance with the pertinent provisions of Rule 9(J) was vacated.\n2. Medical Malpractice \u2014 Rule 9(j) certification \u2014 res ipsa loquitur doctrine\nThe trial court did not err in a medical malpractice case by concluding that plaintiffs\u2019 complaint complied with the pertinent provisions of N.C.G.S. \u00a7 1A-1, Rule 9(j). No bar existed to plaintiffs\u2019 assertion of the res ipsa loquitur doctrine, and plaintiffs\u2019 complaint and forecast of evidence both satisfied the requirements of Rule 9(j)(3) and survived defendants\u2019 motion for summary judgment on that issue.\n3. Medical Malpractice \u2014 elements\u2014applicable standard of care \u2014 summary judgment improper\nThe trial court erred in granting summary judgment in favor of defendants as to plaintiffs\u2019 claim for medical negligence against Dr. Mantyh and Dr. Huang. Plaintiffs presented sufficient evidence to satisfy all elements of a medical malpractice claim against Dr. Mantyh. Further, plaintiffs presented sufficient evidence that Dr. Huang breached the applicable standard of care.\n4. Medical Malpractice \u2014 vicarious liability of hospital \u2014 doctor employee \u2014 apparent agent\nThe trial court erred in granting summary judgment in favor of defendants as to plaintiffs\u2019 claim for medical negligence against defendant Duke University Health Systems (DUHS). Dr. Huang was admittedly employed by DUHS at the time of the alleged medical negligence, and plaintiffs\u2019 evidence sufficiently demonstrated that Dr. Mantyh was an apparent agent of DUHS.\n5. Damages and Remedies \u2014 punitive damages \u2014 summary judgment proper\nThe trial court did not err in a medical malpractice case by granting summary judgment in favor of defendants as to plaintiffs\u2019 claim for punitive damages. Plaintiffs\u2019 complaint and forecast of evidence failed to provide any facts that defendants\u2019 conduct in causing the patient\u2019s injurious condition was willful, wanton, malicious, or fraudulent.\nJudge CALABRIA concurring in result only.\nJudge STEELMAN concurring in result in separate opinion.\nAppeal by plaintiffs from judgment entered 15 June 2012 by Judge Orlando F. Hudson in Durham County Superior Court. Heard in the Court of Appeals 8 May 2013.\nWillcox, Buyck & Williams, P.A., by Reynolds Williams, pro hac vice; and Thomas & Farris, by Albert S. Thomas and Allen G. Thomas, for plaintiff appellants.\nMcGuireWoods LLP, by Mark E. Anderson, Heather R. Wilson, and Monica E. Webb, for defendant appellees." }, "file_name": "0215-01", "first_page_order": 225, "last_page_order": 249 }