NO. COA14-695

NORTH CAROLINA COURT OF APPEALS

Filed: 31 December 2014

BETTY D. WRIGHT,

Plaintiff

v.

Vance County

No. 13 CVS 782

WAKEMED also known as WAKE COUNTY 

HOSPITAL SYSTEM, INC., GURVINDER SINGH 

DEOL, M.D., and JULIAN SMITH, PA-C,

Defendants

Appeal by plaintiff from order entered 12 March 2014 by 

Judge Beecher R. Gray in Vance County Superior Court. Heard in 

the Court of Appeals 19 November 2014.

Rogers and Rogers Lawyers, by Michael F. Rogers, for 

Plaintiff.

Yates, McLamb & Weyher, L.L.P., by Dan J. McLamb, Crystal 

B. Mezzullo, and Andrew C. Buckner, for Defendants.

ERVIN, Judge.

Plaintiff Betty D. Wright appeals from an order granting 

Defendants’ motion to dismiss Plaintiff’s complaint. [R51-53] 

On appeal, Plaintiff contends that the trial court erred by 

allowing Defendants’ dismissal motion on the grounds that 

Plaintiff’s complaint was not certified as required by N.C. Gen. 

Stat. § 1A-1, Rule 9(j) despite the fact that Plaintiff had 

attempted to assert a medical malpractice claim against 
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Defendants. After careful consideration of Plaintiff’s 

challenge to the trial court’s order in light of the record and 

the applicable law, we conclude that the trial court’s order 

should be affirmed.

I. Factual Background

On 21 September 2010, Plaintiff was admitted to WakeMed

hospital for spinal surgery. Following the procedure, Plaintiff 

was discharged by WakeMed’s Surgical and Recovery ACUTE unit and 

transferred to the WakeMed REHAB unit on 28 September 2010.

At the time of the transfer, Plaintiff was provided with a

document entitled “WakeMed REHAB Admission Orders; Admission 

Medication Orders,” which contained a list of medications that 

had been prescribed for Plaintiff, including prescription and 

general medications that had not been included in a previous 

medication list prepared by WakeMed ACUTE for Plaintiff. More 

specifically, Defendants negligently directed that Xanax, Geodon 

and Lithium be included in the “Admission Medication Orders,”

resulting in the ingestion of these medications and an episode 

of somnolence and lethargy from which Plaintiff suffered for 

several days.

On 8 August 2013, Plaintiff filed a complaint seeking the 

recovery of damages for personal injury from Defendants in which 

Plaintiff alleged that she was entitled to prevail on a res ipsa 
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loquitur theory. On 16 October 2013, Defendants filed an answer 

in which they denied the material allegations set out in 

Plaintiff’s complaint and sought to have Plaintiff’s complaint

dismissed on a number of grounds, including a failure to state a 

claim upon which relief could be granted. After a hearing held 

on 3 March 2014 for the purpose of considering the issues raised 

by Defendants’ dismissal motion, the trial court entered an 

order dismissing Plaintiff’s complaint. Plaintiff noted an 

appeal to this Court from the trial court’s order.

II. Legal Analysis

In her sole challenge to the trial court’s order, Plaintiff 

contends that the trial court erred by granting Defendant’s 

dismissal motion. More specifically, Plaintiff contends that 

the trial court erred by failing to determine that she had 

properly alleged that she was entitled to relief on res ipsa 

loquitur grounds.

1 We do not find Plaintiff’s argument 

persuasive.

A. Standard of Review

When ruling on a motion to dismiss pursuant to N.C. Gen. 

Stat. § 1A-1, Rule 12(b)(6), the trial court is required to 

 

1Although Plaintiff seems to suggest that she stated a claim 

for relief on “general negligence” as well as res ipsa loquitur

grounds, she has not advanced any “general negligence” argument 

in her brief. As a result, our decision in this case will focus 

solely on whether Plaintiff’s complaint stated a valid res ipsa 

loquitur claim.
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determine “whether, as a matter of law, the allegations of the 

complaint, treated as true, are sufficient to state a claim upon 

which relief may be granted under some legal theory.” Harris v. 

NCNB Nat’l Bank of N.C., 85 N.C. App. 669, 670, 355 S.E.2d 838, 

840 (1987). In the course of analyzing the sufficiency of the 

plaintiff’s pleading, the complaint must be liberally construed

and “should not be dismissed for failure to state a claim unless 

it appears beyond doubt that [the] plaintiff could prove no set 

of facts in support of his claim which would entitle him to 

relief.” Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 

757, 758 (1987). “On appeal of a [] motion to dismiss [lodged 

pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)], 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 (internal quotation 

marks and citation omitted), disc. review denied and appeal 

dismissed, 361 N.C. 425, 647 S.E.2d 98, cert. denied, 361 N.C. 

690, 652 S.E.2d 257 (2007).

B. Applicable Legal Principles

N.C. Gen. Stat. § 1A-1, Rule 9(j) provides, in pertinent 

part, that:

Any complaint alleging medical malpractice 

by a health care provider pursuant to [N.C. 
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Gen. Stat. §] 90-21.11(2)a. in failing to 

comply with the applicable standard of care 

under [N.C. Gen. Stat. §] 90-21.12 shall be 

dismissed unless:

(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 [N.C. Gen. Stat. 

§ 8C-1,] Rule 702 [] and who is willing to 

testify that the medical care did not comply 

with the applicable standard of care; [or]

. . . .

(3) The pleading alleges facts establishing 

negligence under the existing common law 

doctrine of res ipsa loquitur.

As a result, given that Plaintiff’s complaint lacks a 

certification in the form required by N.C. Gen. Stat. § 1A-1, 

Rule 9(j), the trial court correctly dismissed that pleading 

unless Plaintiff successfully asserted a claim based on the 

doctrine of res ipsa loquitur.

“Res ipsa loquitur (the thing speaks for itself) simply 

means that the facts of the occurrence itself warrant an 

inference of defendant’s negligence, i.e., that they furnish 

circumstantial evidence of negligence where direct evidence of 

it may be lacking.” Sharp v. Wyse, 317 N.C. 694, 697, 346 

S.E.2d 485, 487 (1986) (quotation marks, citation, and emphasis

omitted). “The doctrine of res ipsa loquitur applies when (1) 
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direct proof of the cause of an injury is not available, (2) the 

instrumentality involved in the accident is under the 

defendant’s control, and (3) the injury is of a type that does 

not ordinarily occur in the absence of some negligent act or 

omission.” Alston v. Granville Health System, __ N.C. App. __, 

__, 727 S.E.2d 877, 879 (internal quotation marks and citation 

omitted), disc. review dismissed, 366 N.C. 247, 731 S.E.2d 421 

(2012). Thus, in order to successfully assert a claim based on 

the doctrine of res ipsa loquitur, a “plaintiff must [be] able 

to show – without the assistance of expert testimony – that the 

injury was of a type not typically occurring in the absence of 

some negligence by defendant.” Diehl v. Koffer, 140 N.C. App. 

375, 378, 536 S.E.2d 359, 362 (2000) (emphasis omitted). As a 

result of the fact that the doctrine of res ipsa loquitur only 

applies in the absence of direct proof of the cause of the 

plaintiff’s injury, a plaintiff is not entitled to rely on it in 

the event that there is direct evidence of the reason that the 

plaintiff sustained the injury for which he or she seeks relief. 

Robinson v. Duke University Health Systems, Inc., __ N.C. App. 

__, __, 747 S.E.2d 321, 330 (2013), disc. review denied, __ N.C. 

__, 755 S.E.2d 618 (2014).

In order for the doctrine of res ipsa loquitur “to apply in 

a medical malpractice claim, a plaintiff must allege facts from 
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which a layperson could infer negligence by the defendant based 

on common knowledge and ordinary human experience.” Smith v. 

Axelbank, __ N.C. App. __, __, 730 S.E.2d 840, 843 (2012). “Our 

Courts have consistently found that res 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.” Robinson, __ N.C. App. at __, 

747 S.E.2d at 329 (internal quotation marks and citation 

omitted). Nevertheless,

where proper inferences may be drawn by 

ordinary men from approved 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.

Mitchell v. Saunders, 219 N.C. 178, 182, 13 S.E.2d 242, 245 

(1941).

C. Validity of Trial Court’s Ruling

In granting Defendants’ dismissal motion, the trial court 

stated that:

6. Under North Carolina law, the doctrine 

Res Ipsa Loquitur is limited to situations 

in which the plaintiff can show--without the

assistance of expert medical testimony--that 

the plaintiff’s injury was a result of a 

negligent act by the defendant(s) and that 
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the injury would not have occurred in the 

absence of negligence or dereliction of a 

relevant duty on the part of the 

defendant(s). Res Ipsa Loquitur is not 

appropriate when the question of injury is 

peculiarly in the province of expert 

opinion.

7. The allegations in plaintiff’s 

Complaint involve purported negligence in 

medication reconciliation and in the 

administration of certain medications which 

the Complaint alleges caused the plaintiff 

to become somnolent and lethargic. 

Purported negligence as to these issues 

cannot be inferred absent expert testimony 

and, as such, the doctrine of res ipsa 

loquitur does not apply under North Carolina 

law.

Plaintiff’s contention that she has stated a claim for relief on 

the basis of the doctrine of res ipsa loquitur fails for 

multiple reasons.

In her complaint, Plaintiff has alleged that the injuries 

for which she seeks redress were sustained as the result of an 

explicitly delineated series of events. More specifically, 

Plaintiff has alleged that her injuries resulted from the 

ingestion of specific medications that she should not have 

received and that her ingestion of these medications resulted 

from the fact that medications that she had not been prescribed 

were included on the materials that accompanied her transfer

from WakeMed ACUTE to WakedMed REHAB. In support of this 

assertion, Plaintiff produced a list of the medications that 
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were originally prescribed for her and “Admission Medications 

Orders” signed by Dr. Deol showing that Xanax, Geodon, and 

Lithium had been added to the list of medications that she had 

originally been instructed to take at or about the time of her 

transfer. As a result, Plaintiff has explicitly alleged that 

she was injured in a specific manner by a specific act of 

negligence, a fact that bars her from any attempt to rely on the 

doctrine of res ipsa loquitur.

In seeking to persuade us to reach a different result, 

Plaintiff contends that she had not alleged the existence of 

direct proof concerning the manner in which her injuries 

occurred given that the drugs that she claims had been 

erroneously administered to her had metabolized and had left her 

body by the time of her discharge, thereby depriving her of 

scientific evidence of their presence in her body. We do not 

believe that this fact has any bearing on our analysis given 

that the issue raised by Plaintiff’s claim is not whether 

Plaintiff actually ingested the medications in question, but 

rather how Plaintiff came to have ingested the medications and 

what impact their ingestion had on her. As we have already 

noted, Plaintiff alleged that a specific error that occurred 

during the transfer process resulted in the administration of 

these medications to her. Thus, the absence of chemical 
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evidence that Plaintiff ingested the medications upon which her 

claim rests does not suffice to establish that Plaintiff is 

entitled to rely on the doctrine of res ipsa loquitur.

In addition, we do not believe that Plaintiff is entitled 

to rely on the doctrine of res ipsa loquitur in this case given 

that expert testimony would be necessary to establish the cause 

of the injury that Plaintiff claims to have suffered. In

Axelbank, the plaintiff alleged that she had been injured as the 

result of the fact that the defendant negligently prescribed a 

particular medication for her and asserted that the existence of 

negligence on the part of the defendant could be established 

without the benefit of expert testimony, so that the plaintiff 

was entitled to proceed on a res ipsa loquitur theory. 

Axelbank, __ N.C. App. at __, 730 S.E.2d at 843. In rejecting

the plaintiff’s argument, this Court concluded that “a lay 

person would not be able to determine that plaintiff’s injury 

was caused by Seroquel or be able to determine that Dr. Axelbank 

was negligent in prescribing the medication to plaintiff without 

the benefit of expert witness testimony.” Id. In this case, as 

in Axelbank, a jury would not be able to determine whether

Plaintiff’s injury resulted from the ingestion of Xanax, Geodon, 

and Lithium without having the benefit of expert witness 

testimony, since a lay juror would not necessarily know what 
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these medications are, how they affect the human body, and how 

they might be expected to affect Plaintiff specifically.

In Plaintiff’s view, Axelbank has no bearing on the proper 

resolution of this case since Axelbank involved a situation in 

which the defendant allegedly prescribed the wrong medication 

while this case involves a situation in which errors were made 

in transferring a list of medications from one document to 

another. According to Plaintiff, one need not be a medical 

expert to know that the medication list was erroneously 

transferred and that this error constituted negligence. In 

making this argument, however, Plaintiff appears to confuse the 

meaning of “negligence” as used in the legal context with the 

meaning of the same word as used in common parlance. Although 

the inaccurate copying of a medication list might be understood 

as a negligent act, that fact, standing alone, does not suffice 

to establish a valid negligence-based claim for the recovery of 

damages, which also requires proof that the negligent act on 

which the plaintiff’s claim rests resulted in the injury for 

which the plaintiff seeks redress. Gibson v. Ussery, 196 N.C. 

App. 140, 143, 675 S.E.2d 666, 668 (2009). Assuming, without in 

any way deciding, that Plaintiff can establish a deviation from 

the applicable standard of care by showing the existence of the 

copying error upon which she relies, Plaintiff cannot 
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demonstrate that the injuries of which she complains resulted 

from this specific negligent act in the absence of expert 

testimony.2 Simply put, since “the average juror [is] unfit to 

determine whether [P]laintiff’s [somnolence and lethargy] would 

rarely occur in the absence of” the ingestion of Xanax, Geodon, 

and Lithium, Schaffner v. Cumberland County Hosp. System, Inc., 

77 N.C. App. 689, 692, 336 S.E.2d 116, 118 (1985), disc. reviews

denied, 316 N.C. 195, 341 S.E.2d 578-79 (1986), Plaintiff’s 

attempt to distinguish our decision in Axelbank is not 

persuasive. As a result, since Plaintiff has not established 

that she successfully pled a claim against Defendants on the 

basis of the doctrine of res ipsa loquitur, the trial court 

correctly dismissed her complaint.

III. Conclusion

Thus, for the reasons set forth above, we conclude that 

none of Plaintiff’s challenges to the trial court’s order have 

 

2In addition, we note that, even if a lay person could be 

expected to understand the effect that the specific medications 

that Plaintiff claims to have negligently ingested would have on 

the human body, a successful plaintiff would still be required 

to obtain expert proof that her injuries resulted from the 

ingestion of these specific medications given that the

“Admission Medication Orders” indicate that over a dozen 

medications had been prescribed for Plaintiff and that expert 

medical testimony would be necessary to explain the interactions 

among this collection of medications and whether the injuries 

that Plaintiff claims to have sustained could have resulted from 

the ingestion of one or more of these other medications.
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merit. As a result, the trial court’s order should be, and 

hereby is, affirmed.

AFFIRMED.

Judges ELMORE and DAVIS concur.