Land v. Whitley

898 S.E.2d 17

Doris Griffin LAND and Elliott Land, Plaintiffs,

v.Kori B. WHITLEY, M.D., Physicians East, P.A. d/b/a Greenville OB/GYN, Pitt County Memorial Hospital, Inc. d/b/a Vidant Medical Center, and Pitt County Memorial Hospital, Inc. d/b/a Vidant SurgiCenter, Defendants.

No. COA 23-250

Court of Appeals of North Carolina.

Filed February 6, 2024

Appeal by Defendants from an order entered 27 October 2022 by Judge William R. Pittman in Pitt County Superior Court.

Heard in the Court of Appeals 17 October 2023. Pitt County, No. 22 CVS 395

Miller Law Group, PLLC, by Bruce W. Berger, Raleigh, and MaryAnne ?. Hamilton, for Plaintiffs-Appellees.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Christopher G. Smith, Lumberton, Hope C. Garber, and David R. Ortiz, Raleigh, for Defendants-Appellants.

Harris, Creech, Ward & Blackerby, P.A., New Bern, by W. Gregory Merritt, for Pitt County Memorial Hospital, Inc., d/b/a Vidant Medical Center and Pitt County Memorial Hospital, Inc., d/b/a Vidant SurgiCenter, Defendants-Appellants.

Walker, Allen, Grice, Ammons, Foy, Klick & McCullough, L.L.P., by Elizabeth P. McCullough, Raleigh, and Kelsey Heino, for Kori B. Whitley, M.D. and Physicians East, P.A., d/b/a Greenville OB/GYN, Defendants-Appellants.

Todd Law Offices, PLLC, by Elizabeth C. Todd and Brown, Moore & Associates, PLLC, by Matthew C. Berthold, Charlotte, and Jennifer L. Maynard, for North Carolina Advocates for Justice, Amicus Curae.

WOOD, Judge.

Defendants Dr. Whitley, Greenville OB/GYN, Vidant Medical Center, and Vidant SurgiCenter (collectively "Defendants") appeal from the trial court’s order denying their motions to dismiss on the basis of Rules 12(b)(1), 12(b)(2), 12(b)(6) and 9(j). After careful review, we affirm the order of the trial court.

I. Factual and Procedural Background

The present ease occurred during the beginning months of the COVID-19 pandemic and involves the statute enacted during North Carolina’s state of emergency.

On 3 May 2020, the North Carolina General Assembly unanimously passed a bill entitled The Emergency or Disaster Treatment Protection Act ("The Act") providing limited immunity for health care providers during the COVID-19 pandemic. N.C. Gen. Stat. § 90-21.130 (2023). Governor Roy Cooper signed the bill into law on 4 May 2020. Retroactive to March 2020, the beginning of the pandemic, the limited immunity act protected health care providers from civil liability for claims of ordinary negligence as a result of an act or omission in the course of arranging for or providing health care services provided each of the following applied:

(1) The health care facility, health care provider, or entity is arranging for or providing health care services during the period of the COVID-19 emergency declaration, including, but not limited to, the arrangement or provision of those services pursuant to a COVID-19 emergency rule.

(2) The arrangement or provision of health care services is impacted, directly or indirectly:

a. By a health care facility, health care provider, or entity’s decisions or activities in response to or as a result of the COVID-19 pandemic; or

b. By the decisions or activities, in response to or as a result of the COVID-19 pandemic, of a health care facility or entity where a health care provider provides health care services.

(3) The health care facility, health care provider, or entity is arranging for or providing health care services in good faith.

N.C. Gen. Stat. § 90-21.133(a). The statute specifically excluded gross negligence and willful or intentional conduct from this statutory immunity:

(b) The immunity from any civil liability provided in subsection (a) of this section shall not apply if the harm or damages were caused by an act or omission constituting gross negligence, reckless misconduct, or intentional infliction of harm by the health care facility or health care provider providing health care services; provided that the acts, omissions, or decisions resulting from a resource or staffing shortage shall not be considered to be gross negligence, reckless misconduct, or intentional infliction of harm.

N.C. Gen. Stat. § 90-21.133(b). On 15 August 2022, Governor Cooper lifted the state of emergency thereby ending the statutory limited immunity provided for health care providers by the Act.

Mrs. Land was diagnosed with a high-grade squamous intraepithelial lesion in early 2020, which was at high risk of turning into cervical cancer. Mrs. Land’s health care providers ultimately determined that a total vaginal hysterectomy ("TVH") was necessary. On 29 June 2020, Defendant Dr. Whitley, assisted by resident-in-training Dr. Faiz, performed a TVH on Mrs. Land at Vidant SurgiCenter.

Dr. Whitley noted, in the operative notes that due to Mrs. Land’s anatomy she had difficulty during the procedure. Mrs. Land’s long cervix and a uterine fibroid obscured the left cornual region of her uterus. Despite these complications, Dr. Whitley did not convert the vaginal hysterectomy to an abdominal or laparoscopic procedure, alternative surgical methods that would have allowed better visualization of Mrs. Land’s uterus. Consequently, a three-inch piece of uterine tissue remained undetected in her abdominal cavity following the TVH surgery.

On 14 July 2020, Mrs. Land attended a routine post-operative visit with Dr. Whitley during which she reported experiencing abdominal pain. Dr. Whitley informed Mrs. Land that the surgery had been difficult and renewed her prescription for oxycodone for pain. Dr. Whitley noted in her medical record that Mrs. Land had no complaints other than "struggling with constipation" and described her abdomen as being soft, nontender, non-distended, with active bowel sounds. Dr. Whitley did not note in the medical records that Mrs; Land had reported abdominal pain. According to Mrs. Land, Dr. Whitley, did not physically examine or touch her body during this visit.

On 25 July 2020, Mrs. Land presented with severe abdominal pain to Vidant Emergency Department in Greenville where she was diagnosed with sepsis, stage 4 kidney failure, and an abdominal infection. On 26 July 2020, Dr. McDonald performed an initial laparoscopic exploration of her abdomen followed by emergency surgery after he detected an abscess in her pelvic cavity. Dr. McDonald converted the procedure to a laparotomy, cut open Mrs. Land’s abdomen, removed the infected tissue and explored her pelvic cavity. Dr. Coiner, an OB/GYN physician, was called in to assist with the surgery. The physicians found the infected remnant uterine tissue in Mrs. Land’s abdomen.

Dr. McDonald removed approximately twelve inches of Mrs. Land’s bowel and left the wound open in order to drain the infection. In his post-operative diagnosis, Dr. McDonald noted Mrs. Land had "diffuse peritonitis, pelvic abscess, and an incomplete vaginal hysterectomy with uterine remnant." Mrs. Land was transferred to the intensive care unit where she experienced respiratory failure and had to be intubated on a ventilator until 28 July 2020. Mrs. Land was finally discharged from Vidant Hospital on 7 August 2020. During recovery, Mrs. Land developed pulmonary emboli in both of her lungs, and she was hospitalized again because of complications from the infected uterine remnant. From 31 August 2020 to 16 November 2020, Mrs. Land followed up with Dr. McDonald for treatment of her abdominal wound. On 18 November 2020, Mrs. Land returned to work. According to Mrs. Land, she remains unable to lift anything or to engage in physical activity and has memory loss and mood disturbances requiring psychiatric care.

On 16 February 2022, Plaintiffs, Mrs. Land and her husband, filed a complaint against Defendants Dr. Whitley, Greenville OB/GYN, Vidant Medical Center, and Vidant Surgi-Center alleging claims arising from the hysterectomy performed by Dr. Whitley and Dr. Faiz and her related follow-up care.

In their complaint, Mr. and Mrs. Land alleged negligence and gross negligence against Dr. Whitley and against all other Defendants under the doctrine of respondeat superior and sought damages resulting from the medical malpractice causes of actions. Plaintiffs allege Dr. Whitley violated the duty of care she owed to Mrs. Land by:

[1.] Failing to safely and fully perform a complete vaginal hysterectomy on June 29, 2020;

[2.] Failing to convert the TVH procedure to an open hysterectomy when she encountered difficulty during the TVH;

[3.] Failing to request the assistance of a second surgeon to assist her when the vaginal hysterectomy proved more difficult than expected;

[4.] Failing to see all of the [uterine tissue] material she should have seen and removed during the TVH;

[5.] Failing to remove all pieces of [her]u-terus during the TVH and leaving a portion of [her] uterus in her pelvic cavity that, predictably, became dangerously infected and almost killed her;

[6.] Failing to properly evaluate and examine [Mrs. Land] at the two-week postoperative visit to identify the festering infection caused by the infected retained remnant of uterus; and

[7.] Other negligence as may be determined through discovery and trial in this matter.

On 2 May 2022, Dr. Whitley and Physicians East filed a motion to dismiss and an answer. On 9 May 2022, Vidant Medical Center and Vidant SurgiCenter filed a motion to dismiss and an answer. Plaintiffs filed a memorandum in opposition to the motions to dismiss on 19 October 2022.

On 24 and 25 October 2022, Defendants amended their motions to dismiss on the following grounds: (1) they are immune from suit under the Act, requiring dismissal for Jack of subject matter jurisdiction under Rule 12(b)(1) of the North Carolina Rules of Civil Procedure, lack of personal jurisdiction under Rule 12(b)(2), and failure to state a claim for relief under Rule 12(b)(6); and (2) the complaint was noncompliant with Rule 9(j) on its face. Defendants attached several affidavits to the amended motions to dismiss, including Dr. Whitley’s,...