In an interesting 2016 North Carolina appellate case, the plaintiffs appealed a dismissal of their complaint against a hospital and university health care system. The case arose when a man was admitted to the hospital complaining of abdominal pains. He was married to the plaintiff and was the father of two children who were also plaintiffs. He was an active, healthy person.
While at the hospital, the man’s condition got worse and he was transferred to the ICU, put on a ventilator and died. His body was transferred to the university health care system, but it was later unclear from the plaintiff’s complaint whether this was before or after he died. The defendants’ responsive pleadings stated that his deceased body was transferred.
A few years later, the plaintiffs sued the hospital and health care system. They claimed that the decedent had screamed and called out loudly for his wife and kids, but the hospital staff refused to permit them to see him. The wife told staff she had waited too much time to see her husband and staff had sat with her in the waiting room but refused to let her see the man. The plaintiffs also alleged that neither the man nor his wife had given permission for him to be removed from the ventilator.
The complaint also stated that staff asked the wife if she wanted an autopsy and she’d said yes. She’d also asked that her husband’s head not be cut during the autopsy because she knew this was important to her husband. However, university health care staff told the wife they had to cut his head based on orders from the hospital. The plaintiffs also claimed that the husband had previously agreed to be an organ donor, but decided not to remain one when he renewed his driver’s license. Even so, his organs and eyes were removed from his body.
The plaintiffs claimed loss of consortium, negligent infliction of emotional distress, intentional infliction of emotional distress, wrongful death, and negligence. The hospital and university health care defendants moved to dismiss for failure to state a claim and failing to plead that a qualified expert had reviewed the medical records before suing. The trial court dismissed the claim with prejudice for failing to meet the requirement of pleading that an expert had reviewed the medical records under Rule 9(j), for failing to file the wrongful death claim before the statute of limitations expired, and for failing to state a claim.
The plaintiffs appealed. The appellate court explained that Rule 9(j) required any complaint of medical malpractice to be dismissed if the pleading didn’t state that a medical expert had reviewed the records and would testify that the health care providers hadn’t complied with the standard of care under N.C. Gen. Stat. § 90-21.12. The appellate court explained that the plaintiffs’ loss of consortium claim arose from the wife’s wrongful death claim. The plaintiffs didn’t show how these claims hadn’t risen from medical malpractice. It affirmed the dismissal due to failure to comply with Rule 9(j).
Among other things, the plaintiff argued that the negligence and negligent infliction of emotional distress claims arose not from medical malpractice but from the decedent being prevented from seeing his family while dying and from an unauthorized taking of his organs and the performance of an autopsy. The appellate court explained that the plaintiff had failed to address the trial court’s ruling that they had failed to state a claim, and therefore this ruling couldn’t be changed.
The plaintiff also claimed their intentional infliction of emotional distress didn’t require expert certification. The appellate court explained that the extreme and outrageous conduct at issue must be regarded as utterly intolerable in a civilized community. The court found that the damages requested by the plaintiff related to the man calling out before his death and being prevented from seeing him didn’t necessitate a medical expert’s certification.
Moreover, the allegations didn’t show that the plaintiffs were totally unable to prove their claim of intentional infliction of emotional distress. The appellate court found that the plaintiffs should have the opportunity to conduct discovery with regard to the dismissal of the claim against the hospital. However, it found that the plaintiff’s complaint didn’t show that the university health care system staff had gone outside all possible bounds of decency since they had performed the autopsy with her consent. The lower court’s order was partially reversed, such that the intentional infliction of emotional distress claim against the hospital was allowed to go forward.
Although the plaintiffs couldn’t proceed on their wrongful death claim in this case, there was another potential avenue for recovery of damages. If you lost your loved one due to wrongful death in North Carolina, the experienced personal injury team at Maurer Law may be able to help you recover compensation. Contact us at 919-229-8359 or via our online form.
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