NO. COA14-612

NORTH CAROLINA COURT OF APPEALS

Filed: 2 December 2014

CLIFFORD ROBERTS WHEELESS, III, 

M.D.,

Plaintiff,

v. Vance County

No. 13 CVS 335

MARIA PARHAM MEDICAL CENTER, INC.,

HENDERSON/VANCE HEALTHCARE 1, INC. 

f/k/a MARIA PARHAM ANESTHESIA AND 

PHYSIATRY, INC. d/b/a NORTHERN 

CAROLINA SURGICAL ASSOCIATES,

CYNTHIA ROBINSON, M.D., 

INDIVIDUALLY AND AS AN EMPLOYEE 

AND/OR AGENT OF HENDERSON/VANCE 

HEALTHCARE I, INC., AND/OR MARIA 

PARHAM MEDICAL CENTER, INC.,

JOSEPH MULCAHY, M.D., INDIVIDUALLY 

AND AS AN EMPLOYEE AND/OR AGENT OF 

HENDERSON/VANCE HEALTHCARE I, 

INC., AND/OR MARIA PARHAM MEDICAL 

CENTER, INC.,

ROBERT NOEL, JR., M.D., 

INDIVIDUALLY AND AS AN EMPLOYEE 

AND/OR AGENT OF HENDERSON/VANCE 

HEALTHCARE I, INC., AND/OR MARIA 

PARHAM MEDICAL CENTER, INC., 

ROBERT SINGLETARY, INDIVIDUALLY 

AND/OR CEO AND EMPLOYEE AND/OR 

AGENT OF HENDERSON/VANCE 

HEALTHCARE I, INC., AND/OR MARIA 

PARHAM MEDICAL CENTER, INC.,

JOHN/JANE/IT DOE 1 THROUGH 5, 

INDIVIDUALLY AND AS AN EMPLOYEE 
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AND/OR AGENT OF HENDERSON/VANCE 

HEALTHCARE I, INC., AND/OR MARIA 

PARHAM MEDICAL CENTER, INC.,

Defendants.

Appeal by plaintiff from orders entered 25 November 2013 by 

Judge Robert H. Hobgood in Vance County Superior Court. Heard 

in the Court of Appeals 22 October 2014.

The Law Office of Colon & Associates, PLLC, by Arlene L. 

Velasquez-Colon, and Congdon Law, by Jeannette Griffith 

Congdon, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice, LLP, by James M. Powell 

and Theresa M. Sprain, for defendant-appellees Maria Parham 

Medical Center, Inc., Henderson/Vance Healthcare I, Inc. 

f/k/a Maria Parham Anesthesia and Physiatry, Inc. d/b/a 

Northern Carolina Surgical Associates, Maria Parham Medical

Center, Inc., and Robert Singletary.

Yates, McLamb & Weyher, L.L.P., by Dan J. McLamb, Samuel G. 

Thompson, Jr., and John B. Ward, for defendant-appellees 

Cynthia Robinson, M.D., Joseph Mulcahy, M.D., and Robert 

Noel, Jr., M.D.

BRYANT, Judge.

Since defendants are health care professionals rendering 

professional services, they are not subject to liability for 

unfair and deceptive trade practices. Where plaintiff cannot 

show the existence of a physician-patient relationship, 

plaintiff’s claim for medical malpractice must be dismissed. 

The doctrine of abatement is applicable where two complaints are
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substantially identical as to parties, subject matter, issues 

involved, and relief demanded.

Plaintiff Clifford Roberts Wheeless, III, M.D., is a boardcertified orthopedic surgeon who held active medical privileges 

at defendant Maria Parham Medical Center (“MPMC”) from 1998 to 

2006. In 2005, MPMC’s medical executive committee conducted a 

peer review of plaintiff’s clinical skills. MPMC then initiated 

a new peer review in 2006 regarding allegations that plaintiff

had violated MPMC’s disruptive physician policy. Plaintiff 

denied these allegations and requested a fair hearing concerning

the matter. Prior to the fair hearing, plaintiff and MPMC 

entered into a mediated settlement agreement in July 2006. This 

agreement required MPMC to change plaintiff’s medical privileges 

from active to consulting staff, to terminate all further 

actions against plaintiff, and to abide by a strict 

confidentiality provision. 

Despite the mediated settlement agreement, in August 2006,

plaintiff alleged that defendant had failed to honor plaintiff’s 

consulting privileges. Plaintiff again alleged a failure by 

defendant to acknowledge plaintiff’s consulting privileges in 

early 2007. 
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In 2009, plaintiff was notified by the North Carolina 

Medical Board about an anonymous complaint submitted by “W. 

Blower” alleging inappropriate and disruptive behavior by 

plaintiff. The anonymous complaint included references to 

incidents that were raised during the 2005 and 2006 peer 

reviews. After an investigation by the North Carolina Medical 

Board, the allegations in the anonymous complaint against 

plaintiff were dismissed. 

On 25 August 2011, plaintiff filed a complaint against 

defendants MPMC, MPMC Medical Executive Committee, MPMC Board of 

Directors, Robert Singletary as CEO of MPMC, Cynthia Robinson, 

M.D., and Whistle Blower 1 through 10. In the complaint, 

plaintiff alleged, inter alia, claims for unfair and deceptive 

trade practices, breach of contract, fraud, civil conspiracy, 

and intentional and negligent infliction of emotional distress. 

On 30 April 2012, plaintiff voluntarily dismissed his claims for 

intentional and negligent infliction of emotional distress. 

Defendant MPMC filed a motion for summary judgment on 13 June 

2012. By means of an order entered 10 August, the trial court 

granted MPMC’s motion, in part, with respect to plaintiff’s 

claims for, inter alia, unfair and deceptive trade practices, 

actual and constructive fraud, breach of contract, invasion of 
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privacy, civil conspiracy, and tortious interference with 

contractual relations and prospective economic advantage. The 

remaining claims proceeded to discovery.1

On 28 June 2013, plaintiff filed a second complaint against 

MPMC; Henderson/Vance Healthcare I, Inc. f/k/a Maria Parham 

Anesthesia and Physiatry, Inc. d/b/a Northern Carolina Surgical 

Associates; Cynthia Robinson, M.D., individually and as an 

employee and/or agent of Henderson/Vance Healthcare I, Inc., 

and/or MPMC; Joseph Mulcahy, M.D., individually and as an 

employee and/or agent of Henderson/Vance Healthcare I, Inc., 

and/or MPMC; Robert Noel, Jr., M.D., individually and as an 

employee and/or agent of Henderson/Vance Healthcare I, Inc., 

and/or MPMC; Robert Singletary, individually and as CEO and 

employee and/or agent of Henderson/Vance Healthcare I, Inc., 

and/or MPMC; and John/Jane/It Doe I through 5, individually and 

as an employee and/or agent of Henderson/Vance Health I, Inc., 

and/or MPMC (“defendants”). In the second complaint, plaintiff 

 

1 Plaintiff and MPMC appealed from separate trial court orders 

regarding discovery in this earlier case. The trial court order 

compelling MPMC to supplement its responses to discovery was 

reversed. A separate order granting MPMC’s motion to compel 

production of plaintiff’s medical records was affirmed. See 

Wheeless v. Maria Parham Med. Ctr., Inc., No. COA13-1063, 2014 

N.C. App. LEXIS 686 (July 1, 2014); Wheeless v. Maria Parham 

Med. Ctr., Inc., No. COA13-1475, 2014 N.C. App. LEXIS 772 (July 

15, 2014).
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alleged claims for unfair and deceptive trade practices, 

malicious prosecution, medical malpractice, negligence, and 

negligence per se against all defendants. Plaintiff sought 

compensatory, punitive, special, and treble damages and 

attorneys’ fees. 

On 26 July 2013, defendants MPMC, Henderson/Vance 

Healthcare I, Inc., and Robert Singletary filed a motion to 

dismiss pursuant to Rule 12(b)(6). On 26 August, defendants 

Cynthia Robinson, M.D., Joseph Mulcahy, M.D., and Robert Noel, 

Jr., M.D., filed a motion to dismiss pursuant to Rule 12(b)(6). 

By means of orders entered on 25 November, the trial court 

granted defendants’ motions to dismiss with respect to 

plaintiff’s claims for unfair and deceptive trade practices,

medical malpractice, negligence, and negligence per se. The 

trial court denied defendants’ motions with respect to 

plaintiff’s claim for malicious prosecution. Plaintiff appeals.

________________________

As an initial matter, we note that plaintiff’s appeal is 

interlocutory since plaintiff’s claim from his second complaint 

for malicious prosecution remains pending before the trial 

court. 
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In general, a party cannot immediately appeal from an 

interlocutory order. Davis v. Davis, 360 N.C. 518, 524, 631 

S.E.2d 114, 119 (2006). “The rationale behind [this rule] is 

that no final judgment is involved in such a denial and the 

movant is not deprived of any substantial right that cannot be 

protected by a timely appeal from a final judgment which 

resolves the controversy on its merits.” Block v. Cnty. of 

Person, 141 N.C. App. 273, 276—77, 540 S.E.2d 415, 418 (2000)

(citation omitted).

However, an interlocutory order may be reviewed on appeal 

“(1) when there has been a final determination as to one or more 

of the claims and the trial court certifies that there is no 

just reason to delay the appeal, [or] (2) if delaying the appeal 

would prejudice a substantial right.” Milton v. Thompson, 170 

N.C. App. 176, 178, 611 S.E.2d 474, 476 (2005) (citation 

omitted).

In its orders granting, in part, defendants’ motions to 

dismiss, the trial court noted that:

Plaintiff’s motion to certify the Court’s 

ruling dismissing Counts I [unfair and 

deceptive trade practices] and III [medical 

malpractice and/or negligence] as a Final 

Judgment under Rule 54(b) is allowed. 

Dismissal of Counts I and III of the 

Plaintiff’s complaint is a final judgment 

and there is no just reason for delay. 
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Plaintiff’s claims, for unfair and deceptive trade 

practices, medical malpractice, negligence, and negligence per 

se, were dismissed by order of the trial court pursuant to 

defendants’ motions to dismiss under Rule 12(b)(6). As a motion 

to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency 

of a claim, a finding that the claim was legally insufficient 

amounts to a final judgment with respect to that claim. See 

Cline v. Teich, 92 N.C. App. 257, 264, 374 S.E.2d 462, 466 

(1988) (“[D]ismissal under Rule 12(b)(6) is an adjudication on 

the merits[.]”). Further, we note that the trial court certified 

the dismissal of this claim as final under Rule 54(b). See

Milton, 170 N.C. App. at 178, 611 S.E.2d at 476. Therefore, the 

trial court’s order dismissing plaintiff’s claims for unfair and 

deceptive trade practices, medical malpractice, negligence, and 

negligence per se is immediately appealable.

________________________

Plaintiff raises two issues on appeal concerning whether 

the trial court erred (I) by granting defendants’ motions and 

dismissing plaintiff’s claim for unfair and deceptive trade 

practices; and (II) by granting defendants’ motions and 

dismissing plaintiff’s claims for medical malpractice and/or

negligence. 
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I.

Plaintiff contends that the trial court erred by granting 

defendants’ motions and dismissing plaintiff’s claim for unfair 

and deceptive trade practices. We disagree.

“On appeal of a 12(b)(6) motion to dismiss, this Court 

conducts a de novo review of the pleadings to determine their 

legal sufficiency and to determine whether the trial court's 

ruling on the motion to dismiss was correct.” Burgin v. Owen, 

181 N.C. App. 511, 512, 640 S.E.2d 427, 429 (2007) (citation and 

quotation omitted). 

Plaintiff argues that the trial court erred by granting 

defendants’ motions to dismiss plaintiff’s claim for unfair and 

deceptive trade practices. Specifically, plaintiff contends that

the trial court erred because the “learned profession” exception 

under N.C. Gen. Stat. § 75-1.1 does not apply to defendants in 

this matter.

North Carolina General Statutes, Chapter 75-1.1, holds 

that:

(a) Unfair methods of competition in or 

affecting commerce, and unfair or deceptive 

acts or practices in or affecting commerce, 

are declared unlawful.

(b) For purposes of this section, “commerce” 

includes all business activities, however 

denominated, but does not include 
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professional services rendered by a member 

of a learned profession.

N.C.G.S. § 75-1.1(a), (b) (2013). To determine whether the 

“learned profession” exclusion applies, a two-part inquiry must 

be conducted: “[f]irst, the person or entity performing the 

alleged act must be a member of a learned profession. Second, 

the conduct in question must be a rendering of professional

services.” Reid v. Ayers, 138 N.C. App. 261, 266, 531 S.E.2d 

231, 235 (2000) (citations omitted). 

Plaintiff concedes that defendants, as medical 

professionals, “are members of [a] learned profession.” 

Plaintiff argues, however, that the learned profession exception 

under N.C.G.S. § 75-1.1 does not apply here because, by 

“illegally access[ing], shar[ing], and us[ing] Plaintiff’s peer 

review materials and patients’ confidential medical records out 

of malice and for financial gain for illegal improper 

purpose[,]” defendants have not rendered professional services. 

The improper conduct by defendants of which plaintiff 

complains concerns the anonymous complaint sent by “W. Blower” 

to the North Carolina Medical Board. This anonymous complaint 

contained references to matters addressed by the 2005 and 2006 

peer reviews, matters which plaintiff alleges were to be kept

confidential and private as a result of the 2006 mediated 
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settlement agreement between plaintiff and MPMC. Despite this 

complaint having been sent anonymously to the North Carolina 

Medical Board, plaintiff asserts that all defendants, including 

“John/Jane/It Doe 1 Through 5,” were potentially involved with 

this anonymous complaint because only these parties had access 

to the materials covered by the 2006 mediated settlement 

agreement. As such, the conduct of which plaintiff complains 

involves correspondence sent by one or more medical 

professionals (defendants) to another group of medical 

professionals (the North Carolina Medical Board) concerning the 

conduct of yet another medical professional (plaintiff) 

committed in a professional setting.

It is well-settled by our Courts that “a matter affecting 

the professional services rendered by members of a learned 

profession . . . therefore falls within the exception in 

N.C.G.S. § 75-1.1(b).” Burgess v. Busby, 142 N.C. App. 393, 

407, 544 S.E.2d 4, 11—12 (2001) (citations omitted); see also

Gaunt v. Pittaway, 139 N.C. App. 778, 784, 534 S.E.2d 660, 664 

(2000) (“[M]edical professionals are expressly excluded from the 

scope of N.C.G.S. § 75-1.1(a) and thus it clearly does not 

follow that a statement by a medical professional, criminal or 

otherwise, is governed by this particular statute.”). Indeed, 
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[o]ur Court has made clear that unfair and 

deceptive acts committed by medical 

professionals are not included within the 

prohibition of N.C.G.S. § 75-1.1(a). This 

exception for medical professionals has been 

broadly interpreted by this Court, see 

Phillips v. A Triangle Women's Health 

Clinic, 155 N.C. App. 372, 377-79, 573 

S.E.2d 600, 604-05 (2002); Burgess, 142 N.C. 

App. 393, 544 S.E.2d 4 (2001); Gaunt, 139 

N.C. App. 778, 534 S.E.2d 660 (2000); Abram 

v. Charter Medical Corp., 100 N.C. App. 718, 

722-23, 398 S.E.2d 331, 334 (1990); Cameron 

v. New Hanover Memorial Hospital, Inc., 58 

N.C. App. 414, 447, 293 S.E.2d 901, 921 

(1982), and includes hospitals under the 

definition of “medical professionals.”

Shelton v. Duke Univ. Health Sys., Inc., 179 N.C. App. 120, 126, 

633 S.E.2d 113, 117 (2006) (citation omitted) (affirming the 

trial court’s dismissal of the plaintiff’s claim for unfair and 

deceptive trade practices against the defendant hospital on 

grounds that such a claim cannot be brought against medical 

professionals pursuant to N.C.G.S. § 75-1.1). In this case, 

defendants’ alleged conduct in making a complaint to the Medical 

Board is integral to their role in ensuring the provision of 

adequate medical care. Accordingly, plaintiff’s argument is

without merit.

II.
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Next, plaintiff argues that the trial court erred by

granting defendants’ motions and dismissing plaintiff’s claim 

for medical malpractice and/or negligence. We disagree.

The standard of review of an order 

granting a 12(b)(6) motion is whether the 

complaint states a claim for which relief 

can be granted under some legal theory when 

the complaint is liberally construed and all 

the allegations included therein are taken 

as true. On a motion to dismiss, the 

complaint's material factual allegations are 

taken as true. Dismissal is proper when one 

of the following three conditions is 

satisfied: (1) the complaint on its face 

reveals that no law supports the plaintiff's 

claim; (2) the complaint on its face reveals 

the absence of facts sufficient to make a 

good claim; or (3) the complaint discloses 

some fact that necessarily defeats the 

plaintiff's claim. 

Burgin, 181 N.C. App. at 512, 640 S.E.2d at 428—29 (citations 

and quotation omitted).

Plaintiff contends that the trial court erred by granting 

defendants’ motions to dismiss plaintiff’s third claim for 

medical malpractice, negligence, and negligence per se. In his 

second complaint, plaintiff also raised a claim for relief based 

on res ipsa loquitur; plaintiff further orally asserted a claim 

for relief based on corporate negligence before the trial court. 

A. Medical Malpractice
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In his complaint, plaintiff alleged that defendants engaged 

in medical malpractice pursuant to N.C. Gen. Stat. § 90-21.11. 

North Carolina General Statutes, Chapter 90-21.11, holds that a 

medical malpractice claim may be brought in the following 

instances:

a. 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.

b. A civil action against a hospital, a 

nursing home licensed under Chapter 131E of 

the General Statutes, or an adult care home 

licensed under Chapter 131D of the General 

Statutes for damages for personal injury or 

death, when the civil action (i) alleges a 

breach of administrative or corporate duties 

to the patient, including, but not limited 

to, allegations of negligent credentialing 

or negligent monitoring and supervision and 

(ii) arises from the same facts or 

circumstances as a claim under subsubdivision a. of this subdivision.

N.C. Gen. Stat. § 90-21.11(2) (2013). 

Plaintiff contends that his claim for medical malpractice 

has satisfied the pleading requirements of N.C.G.S. § 90-21.11

because defendants are medical providers and a medical provider—

patient relationship is not required to assert such a claim.

Plaintiff cites Jones v. Asheville Radiological Grp., P.A., 129 

N.C. App. 449, 500 S.E.2d 740 (1998), rev’d in part on other 
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grounds by 351 N.C. 348, 524 S.E.2d 804 (2000), in support of 

his argument.

In Jones, the plaintiff sued her defendant physician and 

medical provider, alleging that the defendants had disclosed her 

medical records without her authorization. Id. at 453, 500 

S.E.2d at 742. The trial court granted the defendants’ motion 

to dismiss on the grounds that the unauthorized disclosure of 

medical records did not give rise to a claim for medical 

malpractice. Id. at 455, 500 S.E.2d at 744. This Court 

disagreed, stating that “in the context of a health care 

provider's unauthorized disclosure of a patient's confidences, 

claims of medical malpractice, invasion of privacy, breach of 

implied contract and breach of fiduciary duty/confidentiality 

should all be treated as claims for medical malpractice.” Id. at 

456, 500 S.E.2d at 744 (citation omitted). The trial court’s 

dismissal of the plaintiff’s claim was then affirmed, however, 

on the grounds that the plaintiff had failed to comply with the 

statute of limitations in filing her complaint. Id. at 456—57, 

500 S.E.2d at 744—45.

Jones is not applicable to the instant case since, in 

Jones, the plaintiff was a patient of the defendants and, thus,

a clear physician/medical provider to patient relationship 
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existed between the plaintiff and the defendants. Here, 

plaintiff was not a patient of defendants, but rather a fellow 

medical professional and associate of MPMC. “[I]t is well 

settled that the relationship of health-care provider to patient 

must be established to maintain an actionable claim for medical 

malpractice.” Massengill v. Duke Univ. Med. Ctr., 133 N.C. App. 

336, 338, 515 S.E.2d 70, 72 (1999) (citing Easter v. Lexington 

Mem’l Hosp., Inc., 303 N.C. 303, 305—06, 278 S.E.2d 253, 255 

(1981) (“It is well settled that the relationship of physician 

to patient must be established as a prerequisite to an 

actionable claim for medical malpractice.”) (citation omitted)). 

Therefore, the trial court did not err by granting defendants’ 

motions to dismiss with respect to plaintiff’s claim for medical

malpractice.

B. Negligence, Negligence per se, Corporate Negligence, Res Ipsa 

Loquitur

Plaintiff also brought written claims for negligence, 

negligence per se, and res ipsa loquitur in his second 

complaint, and orally attempted to assert a claim of corporate 

negligence before the trial court. Plaintiff alleges that these 

negligence claims arose from defendants’ failure to “exercise 

reasonable care and due diligence in safeguarding the medical 
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records generated by Plaintiff, and Plaintiff’s peer review 

materials stored under the exclusive care, custody and control 

of MPMC[.]” In its order dismissing these claims, the trial 

court noted that “The motion to dismiss Plaintiff’s claim for 

medical malpractice and/or negligence (Count III) is allowed. 

The Court’s decision to dismiss Count III is not based on Rule 

9(j) of the Rules of Civil Procedure.” 

In his second complaint, plaintiff alleged that defendants 

are medical providers and staff for whom plaintiff generated 

confidential patient medical records. Plaintiff also alleged 

that, because defendants engaged in two peer reviews of 

plaintiff, defendants owed plaintiff a duty to “properly 

safeguard[] and protect[]” records relating to these reviews 

which were “stored under the exclusive care, custody and control 

of MPMC[.]” Plaintiff further alleged that, in addition to 

defendants “fail[ing] to exercise reasonable care and due 

diligence in safeguarding [the] medical records generated by 

Plaintiff, and Plaintiff’s peer review materials,” defendants 

are liable under the doctrine of res ispa loquitur because 

defendants’ “failure to safeguard Plaintiff’s private and 

confidential materials is evidenced by the fact that said 

Defendant[s] had exclusive possession, custody and control of 
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said materials, which would not have been disclosed, but for 

[defendants’] negligence.” 

As a result, plaintiff has alleged that he is entitled to 

recover damages from defendants based upon his claims for

negligence against defendants, including actions for negligence, 

negligence per se, corporate negligence, and res ipsa loquitur. 

However, these claims have been abated.

Under the law of this state, where a 

prior action is pending between the same 

parties for the same subject matter in a 

court within the state having like 

jurisdiction, the prior action serves to 

abate the subsequent action. The prior 

pending action doctrine involves essentially 

the same questions as the outmoded plea of 

abatement, and is, obviously enough, 

intended to prevent the maintenance of a 

subsequent action [that] is wholly 

unnecessary and, for that reason, furthers 

the interest of judicial economy. The 

ordinary test for determining whether or not 

the parties and causes are the same for the 

purpose of abatement by reason of the 

pendency of the prior action is this: Do the 

two actions present a substantial identity 

as to parties, subject matter, issues 

involved, and relief demanded? 

Jessee v. Jessee, 212 N.C. App. 426, 439, 713 S.E.2d 28, 37 

(2011) (citations and quotations omitted).

A review of plaintiff’s two lawsuits indicates that there 

exists significant overlap between the parties, subject matter, 

issues, and relief demanded. Specifically, each lawsuit concerns 
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a core group of defendants (MPMC, Cynthia Robinson, Robert 

Singletary, and Whistle Blower 1 Through 10/ Doe 1 Through 5), 

and identical subject matter and issues (that defendants’ 

failure to safeguard medical records generated by plaintiff and 

peer review records concerning plaintiff has harmed plaintiff). 

As plaintiff’s two lawsuits “present a substantial identity as 

to parties, subject matter, issues involved, and relief 

demanded[,]” plaintiff’s second complaint has been abated by 

plaintiff’s first complaint. See id. Accordingly, the trial 

court did not err in granting defendants’ motions to dismiss. 

Affirmed. 

Judges ELMORE and ERVIN concur.