UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1367

MARGARET LITTLEPAIGE, Personal representative of the Estate

of Alfred Littlepaige, deceased,
Plaintiff Appellant,
v.
UNITED STATES OF AMERICA,
Defendant Appellee.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.
Malcolm J. Howard,
Senior District Judge. (5:10-cv-00571-H)

Argued:

May 14, 2013

Decided:

June 12, 2013

Before DUNCAN, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Agee wrote the majority

opinion, in which Judge Duncan joined.
Judge Davis wrote a
dissenting opinion.

ARGUED: Peter Joseph Sarda, CREECH LAW FIRM, PA, Raleigh, North
Carolina, for Appellant. Shailika K. Shah, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON
BRIEF:
Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, W. Ellis Boyle, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

AGEE, Circuit Judge:

Margaret

Littlepaige

district

courts

(FTCA)

complaint

(Mrs.

dismissal

of

against

Littlepaige)

her

the

Federal

United

appeals

the

Claims

Act

Tort

States.

The

court

concluded that Mrs. Littlepaiges complaint sounded in medical

malpractice under North Carolina law, and was therefore barred
in the absence of a state medical malpractice certification,
which had not been filed.

For the reasons discussed below, we

affirm the judgment of the district court.

I.
In September 2007, Alfred Littlepaige (Mr. Littlepaige),
a veteran of the Korean War and husband of Mrs. Littlepaige, was
admitted to the Durham Veterans Administration (VA) Medical
Center (VA Hospital) in Durham, North Carolina, suffering from
advanced stages of dementia. 1

Mr. Littlepaige was placed on a

falls precaution, a procedure which the complaint describes as

a period during which the [VA Hospital] undertook to provide
special care and observation to prevent [Mr. Littlepaige] from
falling to the ground while hospitalized.
1

(J.A. 3.)

Because this appeal arises out of the grant of a motion to

dismiss, we accept as true all well-pleaded facts and construe
those facts in the light most favorable to Mrs. Littlepaige, the
plaintiff and nonprevailing party. See Nemet Chevrolet, Ltd. v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).

On September 21, 2007, hospital staff found Mr. Littlepaige

lying on the floor beside his bed.

After a cursory examination,

VA Hospital attendants determined that Mr. Littlepaige was not

injured.

The next day, Mrs. Littlepaige found Mr. Littlepaige

again lying on the floor, bruised and unable to stand.

On

September 25, four days after Mr. Littlepaige was first found on
the

floor,

intestinal

he

was

problem.

given
In

an
the

x-ray
course

exam
of

for

an

reviewing

unrelated
the

x-ray

results, VA physicians discovered that Mr. Littlepaige had a

fractured hip.

Shortly thereafter, Mr. Littlepaige underwent

surgery to correct the hip fracture. 2

In 2009, Mrs. Littlepaige, on behalf of her late husbands
estate, filed an administrative claim with the VA for damages
resulting from the injuries Mr. Littlepaige allegedly suffered
while a patient at the VA Hospital.

The VA later denied Mrs.

Littlepaiges administrative claim, and in 2010, she filed a

complaint against the United States pursuant to the FTCA in the
United States District Court for the Eastern District of North
Carolina.

In her complaint, Mrs. Littlepaige alleged that as a

result of the failure of [the VA Hospital] to properly attend

2

Mr. Littlepaige died sometime between September 2007, and

the commencement of this litigation in December 2010.
The
record does not reflect his cause of death, but there is no
allegation that the VA Hospitals alleged negligence contributed
to Mr. Littlepaiges death.

to [Mr. Littlepaige, he] suffered the pain of a hip fracture,

the pain of surgical repair for his broken hip, permanent loss
of use of his leg and continued pain and suffering.
4).

(J.A. 3-

Mrs. Littlepaige further alleged that [f]alls by a patient

under a falls precaution should not occur with the exercise of

due care by Defendant [VA Hospital].

(J.A. 3).

The complaint

also included the allegation that [a]s a direct and proximate

result of the . . . [VA Hospitals] failure to diagnose the
broken

hip

and

because

of

[the

VA

Hospitals]

failure

to

properly treat [Mr. Littlepaige, he] suffered pain at the hands

of the [VA Hospital.]
The

government

(J.A. 4).

filed

motion

to

dismiss

the

complaint

because no certification as required by Rule 9(j) of the North

Carolina Rules of Civil Procedure was included in the pleadings. 3
Mrs. Littlepaige responded to the motion to dismiss, arguing
that a Rule 9(j) certification is unnecessary because she pleads
only ordinary negligence, not a claim for medical malpractice.
In the alternative, Mrs. Littlepaige contended that even if she
was raising a medical malpractice claim, her complaint falls

In essence, Rule 9(j) requires that, prior to the filing

of a medical malpractice complaint in North Carolina, a
plaintiff must certify that an expert has reviewed the medical
malpractice claim and is prepared to testify that the defendant
did not meet the standard of care (i.e., that the medical
malpractice claim has merit).

within an exception to Rule 9(j) for pleadings that allege[]

facts

establishing

negligence

under

doctrine of res ipsa loquitur.

the

existing

common-law

N.C. Gen. Stat. 1A-1, Rule

9(j)(3).
The

district

court

dismiss,

finding

that

granted
Mrs.

the

governments

Littlepaiges

motion

claims

to

about

defendants execution of its falls precaution plan and failure

to

properly

diagnose

his

injuries

action under North Carolina law.

is

medical

(J.A. 41).

malpractice

The court also

held that the exception for res ipsa loquitur does not apply
here.

(J.A. 42).

Mrs.

Littlepaige

noted

timely

appeal,

and

we

have

jurisdiction pursuant to 28 U.S.C. 1291.

II.
Mrs. Littlepaige argues on appeal that the district court
erred in dismissing her FTCA complaint for two reasons: (1) her
complaint

sounded

in

ordinary

negligence,

thus

obviating

the

need for a Rule 9(j) certification; and (2) in the alternative,

her complaint adequately stated a claim for medical malpractice
under the common law doctrine of res ipsa loquitur, thus falling
into an exception to Rule 9(j).

For the following reasons, we

disagree with Mrs. Littlepaige and affirm the judgment of the

district court.
6

A.
This Court reviews de novo the grant of a Rule 12(b)(6)
motion to dismiss for failure to state a claim.

Coleman v. Md.

Ct. App., 626 F.3d 187, 190 (4th Cir. 2010).

To survive a

motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is
plausible on its face.

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

B.
A plaintiff may recover against the United States only to
the

extent

Welch

v.

that

United

it

has

States,

expressly

waived

409

646,

F.3d

sovereign
650

(4th

immunity.

Cir.

2005)

(citing United States v. Sherwood, 312 U.S. 584, 586 (1941)).

Congress waived the sovereign immunity of the United States for
certain torts committed by federal employees when it enacted the
FTCA in 1946.

Kerns v. United States, 585 F.3d 187, 194 (4th

Cir. 2009) (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994)).
However, the FTCA is a limited waiver of immunity, imposing tort
liability on the United States only in the same manner and to
the

same

extent

as

private

individual

under

like

circumstances, 28 U.S.C. 2674, and only to the extent that a

private person[ ] would be liable to the claimant in accordance
7

with the law of the place where the act or omission occurred,
id. 1346(b)(1).

In other words, a claimant has an FTCA cause

of action against the government only if she would also have a

cause of action under state law against a private person in like
circumstances.
Cir. 1991).

Miller v. United States, 932 F.2d 301, 303 (4th

Thus, the substantive law of each state establishes

the cause of action.

F.3d

103,

117

(4th

Kerns, 585 F.3d at 194; Unus v. Kane, 565

Cir.

2009).

In

the

case

at

bar,

that

substantive law is the state law of North Carolina.

Pursuant to Rule 9(j),
[a]ny complaint alleging medical malpractice by a
health care provider . . . shall be dismissed unless:
(1) [t]he 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 . . . and who is willing to testify
that the medical care did not comply with the
applicable standard of care.
N.C. Gen. Stat. 1A-1, Rule 9(j).

As the Supreme Court of

North Carolina has explained,

[t]he legislature specifically drafted Rule 9(j) to
govern the initiation of medical malpractice actions
and to require physician review as a condition for
filing the action.
The legislatures intent was to
provide a more specialized and stringent procedure for
plaintiffs in medical malpractice claims through Rule
9(j)s requirement of expert certification prior to
the filing of a complaint.
Thigpen v. Ngo, 558 S.E.2d 162, 166 (N.C. 2002).

In an action under the FTCA, [w]e must rule as the North

Carolina courts would, treating decisions of the Supreme Court
of North Carolina as binding, and departing from an intermediate
courts fully reasoned holding as to state law only if convinced
that the state's highest court would not follow that holding.
Iodice

v.

United

States,

289

F.3d

270,

275

(4th

(internal quotation marks and alteration omitted).

9(j),

the

Supreme

Court

medical

malpractice

distinct

requirement

of

North

complaints
of

Carolina

[in

expert

North

has

2002)

As to Rule
stated

Carolina]

certification.

S.E.2d at 165 (emphasis added).

Cir.

that

have

Thigpen,

a
558

The district courts in this

circuit are also unanimous that a Rule 9(j) certification is

required to sustain a medical malpractice action under the FTCA
in

North

Carolina.

See,

e.g.,

Lauer

v.

United

States,

No.

1:12cv41, 2013 WL 566124, at *4 (W.D.N.C. Feb 13, 2013); Baker

v.

United

States,

No.

5:11-CT-3070-D,

2013

WL

211254,

at

*5

(E.D.N.C. Jan. 18, 2013); Hall v. United States, No. 5:10-CT3220-BO,

2013

WL

163639,

at

*3

(E.D.N.C.

Jan.

15,

2013);

Muhammad v. United States, No. 5:11-CT-3126-FL, 2012 WL 3957473,

at *3 (E.D.N.C. Sept. 10, 2012).

It thus appears that, where

applicable, a Rule 9(j) certification is a mandatory requirement

for a plaintiff in a North Carolina medical malpractice action.
We turn first, therefore, to Mrs. Littlepaiges contention
that her complaint sounded in ordinary negligence, thus avoiding
9

the

Rule

Carolina

9(j)
Court

precedential)

expert
of

certification

Appeals

distinction

has

requirement.

provided

between

ordinary

helpful

The

North

(if

negligence

not
and

medical malpractice under North Carolina law in the context of a

medical malpractice case.
According to N.C. Gen. Stat. 90-21.11, the term
medical malpractice action means a civil action for
damages for personal injury or death arising out of
the furnishing or failure to furnish professional
services in the performance of medical, dental, or
other health care by a health care provider.
When
nurses make medical decision[s] requiring clinical
judgment and intellectual skill, they are providing
professional
services,
and
therefore
the
action
against them must be certified per Rule 9(j).
Sturgill v. Ashe Mem'l Hosp., Inc., 652 S.E.2d 302,
306 (N.C. Ct. App. 2007), rev. denied, 658 S.E.2d 662
(N.C. 2008).
Corporate negligence actions brought
against hospitals which pertain to clinical patient
care sound in medical malpractice, while such actions
which
arise
out
of
policy,
management,
or
administrative decisions sound in ordinary negligence.
Estate of Waters v. Jarman, 547 S.E.2d 142, 145 (N.C.
Ct. App. 2001).
Examples of policy, management, or
administrative
decisions
include
granting
or
continuing hospital privileges, failing to monitor or
oversee performance of the physicians, credentialing,
and failing to follow hospital policies[.] Id. In
determining whether or not Rule 9(j) certification is
required, the North Carolina Supreme Court has held
that pleadings have a binding effect as to the
underlying theory of plaintiff's negligence claim.
Sturgill, 652 S.E.2d at 305 (quoting Anderson v.
Assimos, 572 S.E.2d 101, 102 (N.C. 2002)).
Deal v. Frye Regl Med. Ctr., Inc., 691 S.E.2d 132 (table), 2010
WL 522727, at *2 (N.C. Ct. App. Feb. 16, 2010) (alterations in
original).

10

i.
Applying these standards to the case at bar, it is clear
that Mrs. Littlepaiges complaint sounds in medical malpractice,
not ordinary negligence.

Mrs. Littlepaiges complaint alleges,

inter alia,

From

September

18

through

September

25,

2007,

[Mr.

Littlepaige] was under a falls precaution during which

the

defendant

undertook

to

provide

special

care

and

observation to prevent the defendant from falling to the

ground while hospitalized.

(J.A. 3 (emphasis added).)

Falls by a patient under a falls precaution should not

occur with the exercise of due care by the Defendant[.]
(J.A. 3.)

As a direct and proximate result of [the VA Hospitals]

failure to provide adequate supervision, because of [the VA
Hospitals] failure to diagnose the broken hip and because
of

the

[VA

Hospitals]

Littlepaige,
Hospital].

he]

failure

suffered

pain

to
at

properly

the

hands

treat
of

[Mr.

[the

VA

(J.A. 4 (emphasis added).)

The plain language of the complaint demonstrates that Mrs.

Littlepaiges action is one for medical malpractice as that term
is applied under North Carolina law.

As recounted above, the

North Carolina statute defines medical malpractice action as

[a]

civil

action

for

damages
11

for

personal

injury

or

death

arising out of the furnishing or failure to furnish professional

services in the performance of medical, dental, or other health
care

by

21.11(2)a.

health

care

provider.

N.C.

Gen.

Stat.

90-

The allegations in the complaint in this case fit

squarely within that definition.

The complaint describes the

falls precaution as a special duty that can only arise as a

consequence of the provision of professional medical services.
The complaint alleges harm as a consequence of the failure to
diagnose and failure to treat Mr. Littlepaige.
complaint

sought

damages

arising

out

of

the

In short, the
furnishing

or

failure to furnish professional services in the performance of

. . . health care by a health care provider.
90-21.11(2)a.

It

thus

alleged

medical

N.C. Gen. Stat.

malpractice,

not

ordinary negligence.
Furthermore, North Carolina law leaves no room for pleading
in the alternative under the facts of this case.

The facts

alleged in the complaint are that the VA Hospital is a health

care

provider,

and

that,

as

result

of

its

provision

professional services Mr. Littlepaige suffered injury.

of

Even

the most liberal construction of Mrs. Littlepaiges complaint

cannot escape the ambit of Rule 9(j) because it plainly pleads a
medical malpractice action under North Carolina law.
Our conclusion that Mrs. Littlepaiges complaint sounds in
medical

malpractice

is

consistent
12

with

Deal,

persuasive

opinion of the North Carolina Court of Appeals. 4

In Deal, the

court considered and rejected a claim virtually identical to

that

brought

by

Mrs.

Littlepaige

here.

The

Deal

plaintiff

brought a claim that a hospitals failure to conduct a Fall

Risk

Screen

522727

at

Assessment
*1.

The

resulted

plaintiff

in

injury.

failed

to

Deal,

file

2010

Rule

WL

9(j)

certification, the complaint was dismissed, and the plaintiff

argued on appeal that the case sounded in ordinary negligence
only.

The

contention,

North

Carolina

concluding

that

Court
the

of

fall

Appeals
risk

rejected

screening

that

process

involved the rendering of professional services that required

clinical

judgment

and

intellectual

skill.

Id.

at

*4.

Deal.

In

Accordingly, Rule 9(j) certification was required.

We

see

little

to

distinguish

this

case

from

determining whether the VA Hospital staff properly implemented

4

Pursuant to North Carolina Rules of Appellate Procedure,

citation to unpublished opinions of the North Carolina Court of
Appeals is disfavored, except where the unpublished opinion
has precedential value to a material issue in the case and . . .
there is no published opinion that would serve as well.
N.C.
R. App. P. 30(e)(3); see also State ex rel. Moore Cnty. Bd. of
Educ. v. Pelletier, 606 S.E.2d 907, 909 (N.C. Ct. App. 2005)
([C]itation to unpublished opinions is intended solely in those
instances where the persuasive value of a case is manifestly
superior to any published opinion.).
In this instance, the
facts of Deal are so closely aligned with the facts of this case
that we believe that no published opinion . . . would serve as
well as Deal to support the proposition that Mrs. Littlepaiges
complaint sounds in medical malpractice as a matter of law. See
N.C. R. App. P. 30(e)(3).

13

the falls precaution plan, the district court would undoubtedly

have to resolve issues related to standards of medical care and
the

medical

judgment

of

VA

Hospital

staff.

This

is

not

premises liability action or an action challenging some nonmedical aspect of hospital management.

Cf. Estate of Waters v.

Jarman, 547 S.E.2d 142, 145 (N.C. Ct. App. 2001) (holding that
the reasonably prudent person standard of care applies in suits
claiming

negligence

administrative
plain

terms

or
of

on

the

management
the

part

of

deficiencies).

complaint,

Mrs.

aspects of her husbands medical care.

facts

that

the

claim

the

sounds

in

hospital
Rather,

Littlepaige

by

for
the

challenged

We conclude on these

medical

malpractice,

the

strictures of Rule 9(j) apply, and Mrs. Littlepaige failed to

comply with that rule.

ii.
In the alternative, Mrs. Littlepaige argues that if her
claim sounds in medical malpractice, she was not required to
file a Rule 9(j) certification because she adequately pled under
the common law doctrine of res ipsa loquitur.

Accordingly, she

argues that her claim falls into an exception to Rule 9(j).

N.C. Gen. Stat. 1A-1, Rule 9(j)(3).

See

Notwithstanding the fact

that Mrs. Littlepaige did not mention the doctrine of res ipsa
loquitur in her complaint in this case, we do not agree that the
14

facts alleged would give rise to application of that common law

doctrine.
Res ipsa loquitur is an exception, not the rule, to medical
malpractice cases in North Carolina.
To warrant the submission of a malpractice case to the
jury there must be proof of facts or circumstances
which permit a legitimate inference of actionable
negligence on the part of the physician, surgeon, or
dentist.
A showing of an injurious result is not
enough.
The doctrine of res ipsa loquitur cannot be
relied on to supply deficiencies in the proof.
Boyd v. Kistler, 155 S.E.2d 208, 210 (N.C. 1967).
Carolina

Court

of

Appeals

has

determined

that

The North
in

medical

malpractice cases, the doctrine of res ipsa loquitur should be

restrictively applied, because the average juror is unfit to
determine whether a plaintiff's injury would rarely occur in the
absence of negligence.

Rowell v. Bowling, 678 S.E.2d 748, 751

(N.C. Ct. App. 2009) (quotation marks and alterations omitted).

Previously, this Court has held that the doctrine of
res ipsa loquitur applies in situations where the
facts or circumstances accompanying an injury by their
very nature raise a presumption of negligence on the
part of a defendant.
It is appropriate to use the
doctrine when no proof of the cause of an injury is
available, the instrument involved in the injury is in
the exclusive control of a defendant, and the injury
is of a type that would not normally occur in the
absence of negligence.
Id. (internal quotation marks, quotation marks, citation, and
alterations

omitted).

Accordingly,

15

there

is

strong

presumption

under

North

Carolina

law

that,

in

the

medical

malpractice context, res ipsa loquitur will not apply.

For 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.
Diehl v. Koffer, 536 S.E.2d 359, 362
(N.C. Ct. App. 2000); see Bowlin [v. Duke Univ.], 423
S.E.2d [320,] 323 [(N.C. Ct. App. 1992)] (concluding
that
the
doctrine
of
res
ipsa
loquitur
was
inappropriate where a layperson, without the benefit
of
expert
testimony,
would
have
no
basis
for
concluding the physician was negligent in extracting
bone marrow merely because the plaintiff's nerve was
injured during the procedure); Grigg v. Lester, 401
S.E.2d 657, 659 (N.C. Ct. App. 1991) (holding that the
doctrine of res ipsa loquitur did not apply in a case
involving a tear in the plaintiff's uterus during a
caesarean section because a layperson would not be
able to determine that the force exerted by the
physician
during
the
procedure
was
improper
or
excessive).
Smith v. Axelbank, 730 S.E.2d 840, 843 (N.C. Ct. App. 2012).
North Carolina courts have thus articulated a bright-line rule
that a malpractice claim may not be brought on a theory of res
ipsa

loquitur

unless

the

facts

alleged

are

such

that

the

negligence complained of must be of the nature that a jury

through common knowledge and experiencecould infer.

Diehl v.

Koffer, 536 S.E.2d 359, 362 (N.C. Ct. App. 2000).

We have reviewed the complaint and conclude that the facts
alleged,

even

when

construed

liberally,

are

not

such

that

layperson could infer negligence on the part of the VA Hospital

based on common knowledge.

Mrs. Littlepaige alleged that Mr.

16

Littlepaige was placed on a falls precaution, was twice found on

the floor, and some days later an injury was diagnosed.

On the

allegations in the complaint, Mr. Littlepaige could have been

injured

prior

to

his

admission

to

the

VA

Hospital,

or

his

injuries could have come about notwithstanding the exercise of

due care by VA Hospital staff.

While Mrs. Littlepaige need not

eliminate every cause, other than the VA Hospitals negligence,

for Mr. Littlepaiges injuries, the universe of uncertainties in
this case is so vast as to defeat the inference of negligence
necessary to advance a claim under the doctrine of res ipsa
loquitur.

We therefore conclude that Mrs. Littlepaige has not

adequately pled res ipsa loquitur, and thus the exception to

Rule 9(j) does not apply.

Because a private person under like

circumstances would not be liable for medical malpractice under

North Carolina law, the district court did not err in dismissing
Mrs. Littlepaiges FTCA complaint.

III.
For the foregoing reasons, the judgment of the district
court is affirmed.
AFFIRMED

17

DAVIS, Circuit Judge, dissenting:

Because,
manage

to

in

one

misapply

fell
both

swoop,

my

federal

friends

in

procedural

the

law

majority

and

North

Carolina substantive law, I respectfully dissent.

[R]eading

the

complaint

liberally

in

favor

of

the

plaintiff, Sciolino v. City of Newport News, Va., 480 F.3d

642,

651

(4th

Cir.

2007)

(quoting

Anderson

v.

Found.

for

Advancement, Educ. and Empt of Am. Indians, 155 F.3d 500, 505
(4th Cir. 1998) (citing, inter alia, Fed. R. Civ. P. 8)), Mrs.
Littlepaige states a claim for ordinary negligence. She alleges
that

her

husband

Hospital],

the

was
VA

under

Hospital

the

exclusive

failed

to

care

observe

of
and

[the

VA

monitor

[him], her husband fell from his bed, and he suffered a broken
hip and bruises and contusions. J.A. 23. [A] jury [is] fully
capable without aid of expert opinion to apply the standard of
the reasonably prudent man to any evidence in support of these
allegations. Norris v. Rowan Meml Hosp., Inc., 205 S.E.2d 345,
348

(N.C.

Ct.

App.

1974).

Indeed,

such

assertions

are

quite

similar to claims of ordinary negligence that arise out of a

hospitals decision not to offer a cane to a patient who has
trouble walking, Horsley v. Halifax Regl Med. Ctr., Inc., 725
S.E.2d
failure

420,
to

instruct

422

(N.C.

raise

her

to

Ct.

the

bed

use

the

App.
rails

2012);
on

bedside
18

[a
call

hospitals
patients]
button

to

alleged
bed

or

obtain

assistance in going to the bathroom, Norris, 205 S.E.2d at 348;

or

nursing

homes

alleged

failure

to

observ[e]

and

supervis[e] . . . [a resident] . . . smok[ing] in [a] designated

smoking area to prevent her from burning herself, Taylor v.
Vencor,

Inc.,

525

S.E.2d

201,

203

(N.C.

Ct.

App.

2000).

In

short, the allegations in the complaint quoted in this paragraph

did

not

arise

out

of

the

furnishing

or

failure

to

furnish

professional services in the performance of medical, dental, or

other

health

care

by

health

care

provider,

where

professional services means an act or service arising out of

a

vocation,

calling,

occupation,

or

employment

involving

specialized knowledge, labor, or skill, and the labor [or] skill

involved is predominantly mental or intellectual, rather than
physical
(N.C.App.

or

manual.

1998)

Lewis

(emphasis,

v.

Setty,

citations,

503

and

S.E.2d

internal

673,

674

quotations

omitted). 1

In Lewis, the court held that damages claims based on the

negligent movement of a patient from an examination table to a
wheelchair in a physicians office did not sound in medical
malpractice. The court explained its holding as follows, in
part:
In this case, the removal of the plaintiff from the
examination table to the wheelchair did not involve an
occupation involving specialized knowledge or skill,
as it was predominately a physical or manual activity.
It thus follows that the alleged negligent acts of the
defendant do not fall into the realm of professional
medical services. Any negligence which may have
(Continued)
19

That
medical

the

pleading

malpractice

also

claim

asserts

does

not

facts
warrant

giving

rise

dismissal

to

of

the

entire complaint for failure to comply with Rule 9(j) of the

North Carolina Rules of Civil Procedure. Rule 8 of the Federal
Rules of Civil Procedure, which, under the fulsome progeny of
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), governs pleading
in this federal action, 2 permits a party to set out 2 or more
statements of a claim, and as many separate claims . . . as it
has, regardless of consistency. Fed. R. Civ. P. 8(d). Moreover,
[p]leadings must be construed so as to do justice, Fed. R.
Civ.

P.

complaint

8(e),
is

and

[a]n

inconsistent

overly
with

restrictive
th[is]

reading

mandate,

of

Starks

a
v.

occurred when the defendant and Ms. Norris attempted

to move the plaintiff from the examination table back
to his wheelchair falls squarely within the parameters
of ordinary negligence. See Angela Holder, Medical
Malpractice Law 175 (1975) (actions involving falls
from beds or examining tables, equipment failures, or
other types of accidents in a doctors office differ
from medical malpractice actions because they do not
involve negligent treatment).
Lewis, 503 S.E.2d at 674. This reasoning from a reported,
precedential
opinion
of
the
North
Carolina
intermediate
appellate court should count for more than Deal v. Frye Regl
Med. Ctr., Inc., 691 S.E.2d 132 (table), 2010 WL 522727 (N.C.
Ct. App. Feb. 16, 2010), on which the majority inexplicably
relies.
2

Thus, the majoritys assertion that North Carolina law

leaves no room for pleading in the alternative under the facts
of this case, ante, at 12, misses the mark by a wide margin.
20

Perloff Bros., Inc., 760 F.2d 52, 55 (3d Cir. 1985). Because the
complaint

in

this

case

can

be

construed

(indeed,

it

is

impossible to construe it any other way) to allege a claim of

ordinary

negligence,

we

should

reverse

the

district

courts

order dismissing the complaint and remand this case for further
proceedings.

21