IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-89

No. COA21-138

Filed 15 February 2022

Forsyth County, No. 18 CVS 5491

KIMBERLY D. BRYANT, Plaintiff,

v.

WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, NORTH CAROLINA 

BAPTIST HOSPITAL, WAKE FOREST UNIVERSITY HEALTH SCIENCES, & 

MEHMET TAMER YALCINKAYA, M.D., Defendants.

Appeal by Plaintiff from order granting Defendants’ motion for summary 

judgment entered 23 October 2020 by Judge Eric C. Morgan in Forsyth County 

Superior Court. Heard in the Court of Appeals 16 November 2021.

Kennedy, Kennedy, Kennedy, & Kennedy, LLP, by Harvey L. Kennedy and

Harold L. Kennedy, III, for Plaintiff-Appellant.

Coffey Law PLLC, by Tamura D. Coffey, Elizabeth G. Horton, and Peyton M. 

Pawlik, for Defendant-Appellee Mehmet Tamer Yalcinkaya, M.D.

Shumaker, Loop & Kendrick, LLP, by Scott M. Stevenson, John D. Kocher, and

Christopher T. Hood, for Defendant-Appellees Wake Forest University Baptist 

Medical Center, North Carolina Baptist Hospital, and Wake Forest University 

Health Sciences.

JACKSON, Judge.

¶ 1 Kimberly D. Bryant (“Plaintiff”) appeals from an order granting Mehmet 

Tamer Yalcinkaya, M.D., Wake Forest University Baptist Medical Center, North 
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Carolina Baptist Hospital, and Wake Forest University Health Sciences’ (collectively 

“Defendants”) motion for summary judgment. Plaintiff argues that the trial court 

erred because a genuine issue of material fact existed for her fraudulent concealment, 

res ipsa loquitor, medical malpractice, and punitive damages claims. We affirm the 

trial court’s grant of summary judgment for each of Plaintiff’s claims. 

I. Background

¶ 2 In 2007, Plaintiff was referred to Mehmet Tamer Yalcinkaya, M.D. 

(“Defendant Yalcinkaya”), a reproductive endocrinologist, due to pelvic pain caused 

by a large uterine myoma, also known as a uterine fibroid. At that time, Defendant 

Yalcinkaya was an attending physician, associate professor, and the Reproductive 

Endocrinology and Infertility (“REI”) Section Head at Wake Forest University 

Baptist Medical Center in Winston-Salem. Defendant Yalcinkaya was a physician 

licensed in North Carolina and board-certified in both Obstetrics and Gynecology 

(“OB-GYN”) and REI.

¶ 3 After examining Plaintiff, Defendant Yalcinkaya confirmed her uterine myoma 

diagnosis and recommended an exploratory laparotomy (abdominal surgery) and 

myomectomy (surgical removal of uterine fibroids). After Plaintiff consented to the 

surgical course of treatment, Defendant Yalcinkaya performed the surgery on 5 

October 2007. During the procedure, Defendant Yalcinkaya determined that Plaintiff 
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had Stage IV endometriosis, an advanced form of a disorder that results in abnormal 

endometrial tissue growth outside the uterus, which had affected Plaintiff’s uterus, 

fallopian tubes, ovaries, and uterine cul-de-sac—meaning that Plaintiff’s pelvis was 

largely covered with adhesions and scar tissue. Defendant Yalcinkaya removed 

Plaintiff’s large uterine fibroid and many of the endometrial adhesions. After the 

surgery, Defendant Yalcinkaya documented and diagrammed the extent of Plaintiff’s 

endometriosis, and noted in her chart that her prognosis regarding fertility was 

guarded even with removal of the fibroid and the assistance of in vitro fertilization 

(“IVF”). Plaintiff alleged that Defendant Yalcinkaya told her and her husband after 

the surgery “to rest for three months, and after that there was no reason she couldn’t 

get pregnant and have a child.”

¶ 4 Near the end of the surgery, Defendant Yalcinkaya implanted a prelude 

peritoneal membrane, also known as a Gore-Tex adhesion barrier, to prevent 

adhesions from forming at the surgical incision site where the fibroid was removed. 

Defendant Yalcinkaya used non-absorbable sutures when implanting the Gore-Tex 

barrier, in order to keep it in place permanently. The use of the Gore-Tex barrier was 

documented in Defendant Yalcinkaya’s operative note for the procedure, as well as in 

the perioperative record of the procedure. The Gore-Tex barrier was specifically 

listed under the “Implants” section of the operative note, with the serial number, lot 

number, and model number of the barrier listed along with other information. This 
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type of surgical membrane was routinely used in 2007 to prevent pelvic adhesion 

formation. Defendant Yalcinkaya testified that he used the implant to prevent 

adhesion formation at the incision site and increase Plaintiff’s fertility and chance of 

carrying a child to term.

¶ 5 After the procedure, Plaintiff saw Defendant Yalcinkaya for post-operative 

treatment. Defendant Yalcinkaya recommended and noted in her chart that Plaintiff 

undergo drug therapy to inhibit uterine fibroid growth as well as a second procedure 

to evaluate her endometriosis and remove additional fibroids and endometrial 

adhesions. Defendant Yalcinkaya says he told Plaintiff this during an office visit on 

9 October 2007 and another visit on 18 December 2007, but Plaintiff asserts this was 

never communicated to her. Plaintiff did not complete drug therapy or undergo a 

second surgery, and her last office visit with Defendant Yalcinkaya was 5 March 

2008. At this last appointment, Plaintiff indicated that she did not know when she 

might want to become pregnant and discontinued her treatment with Defendant 

Yalcinkaya.

¶ 6 In December 2016, Plaintiff returned to the Wake Forest gynecology clinic for 

treatment of a large pelvic mass. On 21 February 2017, Plaintiff presented for 

surgery to E. Johnston-MacAnanny, M.D. (“Dr. Johnston”), who performed an 

exploratory laparotomy with adhesiolysis, evaluating and draining Plaintiff’s pelvic 

mass. During this procedure, Dr. Johnston found and removed the Gore-Tex implant 
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that had been placed by Defendant Yalcinkaya almost ten years prior. At the time, 

Dr. Johnston did not know what the object was, and initially thought it could be a 

sheet of plastic. After lab analysis, it was later discovered to be the Gore-Tex implant.

¶ 7 On 21 September 2017, Plaintiff filed suit against Wake Forest University 

Baptist Medical Center, North Carolina Baptist Hospital, Wake Forest University 

Health Sciences, and Defendant Yalcinkaya (collectively “Defendants”) alleging that

the Gore-Tex barrier implanted by Defendant Yalcinkaya caused her infertility. On 

16 February 2018, Plaintiff voluntarily dismissed the suit without prejudice, and filed 

a new complaint on 25 October 2018, naming the same defendants.

¶ 8 On 12 March 2020, Plaintiff’s standard of care expert, Steven D. McCarus, 

M.D. (“Dr. McCarus”), was deposed. During his deposition, Dr. McCarus testified in 

relevant part that

 In 2007, there were three types of FDA-approved implants to prevent postsurgical adhesion formation, one of which was the Gore-Tex barrier used in 

this case.

 Adhesion barriers have a therapeutic purpose, and in 2006 and 2007, Gore-Tex 

adhesion barriers had therapeutic purposes.

 At the time of Plaintiff’s procedure, there was no medical literature suggesting 

that any of the adhesion barriers were superior; it was simply the surgeon’s 

preference as to which FDA-approved implant to use.
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 If Plaintiff chose not to return to Defendant Yalcinkaya for treatment, 

Defendant Yalcinkaya had no ability to further treat Plaintiff or continue her 

course of care.

¶ 9 On 11 April 2020, Plaintiff served an errata sheet that attempted to modify 

and change some of Dr. McCarus’s testimony. In particular, in the errata sheet, Dr. 

McCarus testified that

 Gore-Tex barriers “can” have a therapeutic purpose “if they are properly used. 

In the case of Kimberly Bryant, the Gore-Tex adhesion barriers were 

improperly used because Dr. Yalcinkaya failed to remove them within 2 to 8 

weeks after the gynelogic surgery.”

 Gore-Tex barriers “could have therapeutic purposes if they were properly 

used. . . . Per his deposition testimony, [Dr. Yalcinkaya’s] intent was to leave 

the Gore-Tex in Ms. Bryant’s body permanently. To leave this in her body more 

than 8 weeks after surgery would have been for a non-therapeutic purpose.”

¶ 10 Defendants moved for summary judgment on the grounds that the pleadings, 

written discovery, depositions, and affidavits showed no genuine issue of material 

fact on her fraud, medical malpractice, or res ipsa loquitor claims. Plaintiff opposed 

the motion and filed another affidavit from Dr. McCarus in response. The affidavit

reflected the modifications made in the errata sheet. On 23 October 2020, the trial 

court entered an order granting Defendants’ motion for summary judgment and 
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dismissing Plaintiff’s claims with prejudice.

¶ 11 Plaintiff timely filed notice of appeal.

II. Analysis

A. Standard of Review

¶ 12 Summary judgment is proper “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that any party is entitled to a 

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1(c), Rule 56 (2021). “All facts 

asserted by the nonmoving party are taken as true and viewed in the light most 

favorable to that party.” Ussery v. Branch Banking & Trust Co., 368 N.C. 325, 334, 

777 S.E.2d 272, 278 (2015) (internal marks and citation omitted). “A ‘genuine issue’ 

is one that can be maintained by substantial evidence.” Dobson v. Harris, 352 N.C. 

77, 83, 530 S.E.2d 829, 835 (2000) (citation omitted). “Substantial evidence is such 

relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion[.]” Ussery, 368 N.C. at 335, 777 S.E.2d at 278-79 (internal quotation and 

citation omitted). On appeal, we review an order granting summary judgment de 

novo. Dallaire v. Bank of Am., N.A., 367 N.C. 363, 367, 760 S.E.2d 263, 266 (2014).

B. Fraudulent Concealment: Fraud and Breach of Fiduciary Duty

¶ 13 In support of her claim of fraudulent concealment, Plaintiff makes arguments 

of actual fraud and constructive fraud. We hold that the evidence fails to support a 
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prima facie case of either actual or constructive fraud, and therefore affirm the trial 

court’s grant of summary judgment dismissing the fraudulent concealment claim. 

1. Actual Fraud

¶ 14 Plaintiff advances three theories of fraudulent concealment:1 (1) Defendant 

Yalcinkaya concealed the fact that he placed the Gore-Tex barrier inside of Plaintiff,

(2) Defendant Yalcinkaya concealed that the Gore-Tex barrier needed to be removed 

after eight weeks, and (3) Defendant Yalcinkaya concealed that Plaintiff needed a 

second operation and additional drug therapy. We agree with the trial court that 

there is no genuine issue of material fact and Defendants are entitled to judgment as 

a matter of law on Plaintiff’s fraudulent concealment claim. 

¶ 15 In order to support a claim of actual fraud, Plaintiff must prove five elements:

“(1) [f]alse representation or concealment of a material fact, (2) reasonably calculated 

to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting 

in damage to the injured party.” Watts v. Cumberland Cnty. Hosp. Sys. Inc., 317 N.C. 

110, 117, 343 S.E.2d 879, 884 (1986) (internal quotation and citation omitted). 

¶ 16 Here, Plaintiff fails to make a prima facie case of actual fraud. First, Plaintiff’s 

 

1 Additionally, Plaintiff argues for the first time on appeal that Defendant Yalcinkaya 

made an intentionally false statement to Plaintiff by telling her “to rest for three months, 

and after that there was no reason she couldn’t get pregnant and have a child.” However, 

Plaintiff cannot create an issue of material fact for summary judgment by raising it for the 

first time on appeal, see Piraino Bros., LLC v. Atl. Fin. Grp., Inc., 211 N.C. App. 343, 348, 712 

S.E.2d 328, 332 (2011), and therefore we decline to address this argument that was not before 

the trial court. 
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evidence does not support her argument that Defendant Yalcinkaya concealed the 

implantation of the Gore-Tex barrier. Plaintiff claims that Defendant Yalcinkaya did 

not inform her about the Gore-Tex barrier’s implantation in any of her appointments, 

and Defendant Yalcinkaya claims that he discussed the implantation both before and 

after Plaintiff’s surgery. Defendant Yalcinkaya’s operative note reflects that, during 

Plaintiff’s procedure, he placed a Gore-Tex barrier over a uterine incision and sutured 

said barrier to her “uterine serosa.” Moreover, Defendant Yalcinkaya’s post-operative 

record provides the exact serial, lot, and model number of the Gore-Tex barrier that 

was implanted during Plaintiff’s surgery.

¶ 17 Second, Plaintiff’s evidence does not support her argument that Defendant 

Yalcinkaya concealed that the Gore-Tex barrier needed to be removed after eight 

weeks. Although Plaintiff presented expert testimony that the Gore-Tex barrier 

needed to be removed after eight weeks, she did not present any evidence tending to 

show that it was Defendant Yalcinkaya’s intention to remove the Gore-Tex barrier 

after eight weeks, or that he falsely represented or concealed this from Plaintiff with 

the intent to deceive her. In his sworn testimony, Defendant Yalcinkaya never 

wavered that he implanted the Gore-Tex barrier in Plaintiff with the intention that 

it remain in her body permanently.

¶ 18 Third, Plaintiff’s evidence does not support her argument that Defendant 

Yalcinkaya intentionally concealed that Plaintiff needed a second operation and 
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additional drug therapy. Plaintiff claims that Defendant Yalcinkaya never informed 

her about additional treatments, and in fact, told her “to rest for three months, and 

after that there was no reason she couldn’t get pregnant and have a child.” However, 

Defendant Yalcinkaya specifically noted in Plaintiff’s chart that her fertility 

prognosis was guarded even with the assistance of IVF. Assuming that Defendant 

Yalcinkaya’s statement was a false representation or concealment of a material fact, 

Plaintiff still has not produced any evidence that the statement was reasonably 

calculated to deceive or that Defendant Yalcinkaya made the statement with intent 

to deceive. Plaintiff alleges that Defendant Yalcinkaya “decided not to provide her 

further medical treatment because he believed she could not pay him[,]” and this 

suffices to show Defendant Yalcinkaya’s motive and intent to deceive. However, after 

the completion of her surgery, Plaintiff voluntarily discontinued treatment with 

Defendant Yalcinkaya. Plaintiff’s own expert acknowledged that her decision not to 

return for treatment thereafter precluded Defendant Yalcinkaya from continuing 

Plaintiff’s postoperative care or engaging in further treatments.

2. Breach of Fiduciary Duty and Constructive Fraud

¶ 19 A claim for breach of fiduciary duty is ordinarily subject to a three-year statute 

of limitations but may be governed by a 10-year statute of limitations when it “rise[s] 

to the level of constructive fraud.” Ironman Med. Props., LLC v. Chodri, 268 N.C. 

App. 502, 512, 836 S.E.2d 682, 690 (2019) (internal quotation and citations omitted). 
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Here, because Plaintiff’s suit was not filed until over nine years after Defendant 

Yalcinkaya’s last act, Plaintiff’s claim for breach of fiduciary duty is necessarily 

barred unless it rises to the level of constructive fraud.

¶ 20 In order to prove constructive fraud, Plaintiff must allege and prove: “(1) that 

the defendant owes the plaintiff a fiduciary duty; (2) that the defendant breached that 

duty; and (3) that the defendant sought to benefit himself in the transaction.” 

Ironman, 268 N.C. App. at 513, 836 S.E.2d at 691 (internal marks and citation 

omitted). This Court has further emphasized that

[t]he primary difference between pleading a claim for 

constructive fraud and one for breach of fiduciary duty is 

the intent and showing that the defendant benefitted from 

his breach of duty. This element requires a plaintiff to 

allege and prove that the defendant took advantage of his 

position of trust to the hurt of plaintiff and sought his own 

advantage in the transaction.

Id. (internal quotations and citations omitted).

¶ 21 Here, Plaintiff asserts that Head v. Gould Killian CPA Grp., P.A., 371 N.C. 2, 

812 S.E.2d 831 (2018), eliminated the requirement of a benefit to prove constructive 

fraud. In Head, our Supreme Court states the following on constructive fraud:

Constructive fraud arises where a confidential or fiduciary 

relationship exists, and its proof is less exacting than that 

required for actual fraud. When a fiduciary relation exists 

between parties to a transaction, equity raises a 

presumption of fraud when the superior party obtains a 

possible benefit. To assert a cause of action for constructive 

fraud, the plaintiff must allege facts and circumstances (1) 
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which created the relation of trust and confidence, and (2) 

led up to and surrounded the consummation of the 

transaction in which defendant is alleged to have taken 

advantage of his position of trust to the hurt of plaintiff.

Head, 371 N.C. at 9, 812 S.E.2d at 837 (internal marks and citations omitted). At no 

point in Head does our Supreme Court expressly or impliedly eliminate the benefit 

requirement as Plaintiff contends. Moreover, after Head, this Court has continued 

to require a showing of benefit for constructive fraud. See, e.g., Ironman Med. Props., 

268 N.C. App. at 513, 836 S.E.2d at 691; Stitz v. Smith, 272 N.C. App 415, 422, 846 

S.E.2d 771, 775 (2020); Gen. Fid. Ins. Co. v. WFT, Inc., 269 N.C. App. 181, 186, 837 

S.E.2d 551, 556 (2020).

¶ 22 Here, Plaintiff’s only argument that Defendant Yalcinkaya benefitted from his 

alleged breach of duty is that Plaintiff “allowed Dr. Yalcinkaya to perform the surgery 

on her.” However, in Ironman, we held that the benefit alleged by a plaintiff must be 

“more than a continued relationship with the plaintiff[,]” 268 N.C. App. at 513, 836 

S.E.2d at 691, and, further, Defendant Yalcinkaya testified that there were no factors 

about Plaintiff’s case or procedure that would enhance his reputation or give him any 

possible benefit.

¶ 23 Because Plaintiff has failed to create a prima facie case of fraudulent 

concealment, either through actual or constructive fraud, the trial court properly 

concluded that Defendants are entitled to summary judgment as a matter of law. 
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C. Res Ipsa Loquitor

¶ 24 Plaintiff argues that the trial court erred by concluding that res ipsa loquitor 

was inapplicable in this case. We disagree and affirm the trial court’s conclusion on 

res ipsa loquitor. 

¶ 25 “Res ipsa loquitur applies when (1) direct proof of the cause of an injury is 

unavailable, (2) defendant controlled the instrumentality involved in the accident, 

and (3) the injury is of a type that does not ordinarily occur in the absence of some 

negligent act or omission.” Bluitt v. Wake Forest Univ. Baptist Med. Ctr., 259 N.C. 

App. 1, 4, 814 S.E.2d 477, 480 (2018) (internal quotation and citation omitted). “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.” Smith v. Axelbank, 222 N.C. App. 555, 

559, 730 S.E.2d 840, 843 (2012). Therefore, “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.” Bluitt, 259 N.C. App. at 5, 814 

S.E.2d at 480 (internal quotation and citation omitted). See also Rowell v. Bowling, 

197 N.C. App. 691, 696, 678 S.E.2d 748, 751 (2009) (“Normally, in [medical 

malpractice] actions, both the standard of care and its breach must be established by 

expert testimony.” (internal quotation omitted)). 

¶ 26 Here, the trial court, in holding that res ipsa loquitor was inapplicable, found 
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that 

[q]uestions of if and when the Gore-Tex should have been 

removed and what damage a failure to remove caused to 

Plaintiff are questions that a layperson could not resolve 

with ordinary knowledge and experience. Indeed, both 

parties have qualified expert[] witnesses precisely because 

such testimony is necessary to answer those questions.

¶ 27 We agree with the trial court that res ipsa loquitor cannot apply because a 

layperson, without the assistance of expert testimony, could not infer negligence from 

the facts of this case based on common knowledge and ordinary human experience. 

Plaintiff’s procedure involved the surgical placement of a Gore-Tex adhesion barrier,

the proper use of which is outside the common knowledge, experience, and sense of a 

layperson. Thus, without expert testimony, a layperson would lack a basis to 

determine whether Plaintiff’s injury was one that would not normally occur in the 

absence of negligence or was an inherent risk of the procedure and use of this surgical

bandage. Therefore, because “both the standard of care and its breach must be 

established by expert testimony[,]” Bluitt, 259 N.C. App. at 6, 814 S.E.2d at 481, we 

agree that a res ipsa loquitor claim is inappropriate in this case and affirm the trial 

court’s conclusion that there is no genuine issue of material fact and Defendants are 

entitled to judgment as a matter of law on Plaintiff’s res ipsa loquitor claim. 

D. Medical Malpractice

¶ 28 Plaintiff argues that there is a genuine issue of material fact regarding 
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whether the Gore-Tex barrier had a therapeutic purpose or effect at the time it was 

implanted. We disagree and affirm the trial court’s grant of summary judgment.

¶ 29 North Carolina General Statutes § 1-15(c) provides three different time 

limitations for medical malpractice claims:

[1] a minimum three-year period from occurrence of the 

last act; 

[2] an additional one-year-from-discovery period for 

injuries “not readily apparent” subject to a four-year period 

of repose commencing with defendant’s last act giving rise 

to the cause of action; and 

[3] an additional one-year-from-discovery period for foreign 

objects subject to a ten-year period of repose again 

commencing with the last act of defendant giving rise to 

the cause of action.

Black v. Littlejohn, 312 N.C. 626, 634, 325 S.E.2d 469, 475 (1985). Regarding the 

third option, the statute specifically provides that

where damages are sought by reason of a foreign object, 

which has no therapeutic or diagnostic purpose or effect, 

having been left in the body, a person seeking damages for 

malpractice may commence an action therefor within one 

year after discovery thereof as hereinabove provided, but 

in no event may the action be commenced more than 10 

years from the last act of the defendant giving rise to the 

cause of action.

N.C. Gen. Stat. § 1-15(c) (2021) (emphasis added). 

¶ 30 Here, the crux of the issue is whether the Gore-Tex barrier had a therapeutic 

purpose or effect, such that it is not considered a “foreign object” which would require 
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application of the 10-year statute of limitations. The trial court found that the fouryear statute of limitations applied, but Plaintiffs argue that we should apply the 10-

year statute of limitations because the Gore-Tex barrier is a nontherapeutic foreign 

object. The trial court, however, found that “Plaintiff’s and Defendants’ experts agree 

that Gore-Tex can be properly used as an adhesion barrier to prevent pelvic adhesion 

formation and that such a use is therapeutic.”

¶ 31 Plaintiff argues that actually, their experts did not agree that the Gore-Tex 

barrier serves a therapeutic purpose, pointing to her expert’s errata sheet and

affidavit. Defendants argue at length that this Court should not consider Plaintiff’s 

expert’s errata sheet or affidavit, which they argue impermissibly modify Dr. 

McCarus’s deposition testimony and attempt to create an issue of fact under the sham 

affidavit doctrine.2 In his deposition testimony, Dr. McCarus testified unequivocally 

that adhesion barriers, and specifically the Gore-Tex barrier, have a therapeutic 

purpose. In the disputed errata sheet, Dr. McCarus slightly modifies this testimony 

to say that Gore-Tex adhesion barriers “can [have a therapeutic purpose] if they are 

properly used” and “could have therapeutic purposes if properly used.” In the errata 

 

2 The sham affidavit doctrine provides that conflicts between an expert’s deposition 

and later affidavits create a credibility issue, not a genuine issue of material fact, and 

therefore it would be improper to consider the conflicting testimony when making a summary 

judgment determination. Hawkins v. Emergency Med. Physicians of Craven Cnty., PLLC, 

240 N.C. App. 337, 345, 770 S.E.2d 159, 164-65 (2015).
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sheet, Dr. McCarus then opines that the Gore-Tex barrier was improperly used in 

this case because Defendant Yalcinkaya failed to remove it after two to eight weeks, 

and clarifies that the Gore-Tex barrier could not have a therapeutic purpose here

because Defendant Yalcinkaya intended to leave the Gore-Tex barrier in Plaintiff’s 

body permanently, which would be non-therapeutic.

¶ 32 We disagree with Plaintiff and hold that the trial court correctly found no issue 

of material fact as to whether the Gore-Tex barrier had a therapeutic purpose. 

Without reaching the sham affidavit doctrine issue introduced by Defendants, even 

if the errata sheet is admissible testimony, Plaintiff has improperly interpreted

statutory language in an attempt to create an issue of fact.

¶ 33 When engaging in statutory interpretation, our Supreme Court has explained

[t]he primary rule of statutory construction is that the 

intent of the legislature controls the interpretation of a 

statute. The foremost task in statutory interpretation is to 

determine legislative intent while giving the language of 

the statute its natural and ordinary meaning unless the 

context requires otherwise. Where the statutory language 

is clear and unambiguous, the Court does not engage in 

judicial construction but must apply the statute to give 

effect to the plain and definite meaning of the language.

Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 518, 597 S.E.2d 717, 

722 (2004) (internal marks and citations omitted). Moreover, “a statute should not 

be interpreted in a manner which would render any of its words superfluous. We 

construe each word of a statute to have meaning, where reasonable and consistent 
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with the entire statute, because it is always presumed that the legislature acted with 

care and deliberation.” State v. Coffey, 336 N.C. 412, 417-18, 444 S.E.2d 431, 434 

(1994) (internal marks and citations omitted). 

¶ 34 In giving words their natural and ordinary meaning, this Court has interpreted 

clauses connected by the “disjunctive ‘or’” to mean that 

application of the statute is not limited to cases falling 

within both clauses but applies to cases falling within 

either one of them. In its elementary sense the word ‘or’, 

as used in a statute, is a disjunctive particle indicating that 

the various members of the sentence are to be taken 

separately[.]

Grassy Creek Neighborhood All., Inc. v. City of Winston-Salem, 142 N.C. App. 290, 

297, 542 S.E.2d 296, 301 (2001) (internal marks and citations omitted).

¶ 35 Here, the crux of the statutory language in question focuses on the phrase “a 

foreign object, which has no therapeutic or diagnostic purpose or effect, having been 

left in the body[.]” N.C. Gen. Stat. § 1-15(c) (2021) (emphasis added). There is no 

case law from North Carolina courts discussing or interpreting the meaning of 

therapeutic purpose or effect under this statute, and therefore this is an issue of first 

impression. We hold that the statute’s natural and ordinary meaning indicates that 

an object can have either a therapeutic purpose or therapeutic effect to be removed 

from the outer 10-year statute of limitations. 

¶ 36 Here, Plaintiff argues that an issue of material fact exists because her expert, 
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Dr. McCarus, claims the Gore-Tex barrier does not have a therapeutic purpose and 

Defendants’ expert claims the Gore-Tex barrier does have a therapeutic purpose. 

However, this is an oversimplification and mischaracterization of Dr. McCarus’s

testimony. Even accepting Dr. McCarus’s modified testimony that the Gore-Tex “can” 

or “could” have a therapeutic purpose if left in the body for only two to eight weeks, 

Plaintiff’s expert admits that Gore-Tex barriers serve a therapeutic purpose when 

properly used —he just disputes Defendant Yalcinkaya’s decision to leave the barrier 

in Plaintiff’s body permanently. Assuming that the Gore-Tex barrier should have 

been removed eight weeks after implantation, the barrier still had a therapeutic 

purpose on the date it was implanted: to prevent adhesion formation at the incision 

site. This therapeutic purpose does not disappear simply because the barrier was not 

timely removed.

¶ 37 Plaintiff characterizes her argument as one about therapeutic purpose in order 

to create a factual dispute, but in fact, whether the Gore-Tex barrier was timely 

removed is a question of whether the Gore-Tex barrier had a therapeutic effect, not 

whether it had a therapeutic purpose. Even accepting that the barrier did not have 

a therapeutic effect in this case, the experts still agree that the Gore-Tex barrier at 

least initially served a therapeutic purpose. Because of the disjunctive “or” in the 

statute which “indicat[es] that the various members of the sentence are to be taken 

separately[,]” the barrier need only have a therapeutic purpose or a therapeutic effect 
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for the four-year statute of limitations to apply. Because the experts agree as to the 

therapeutic purpose of the Gore-Tex barrier, the dispute over whether the Gore-Tex 

barrier had a therapeutic effect after being left in Plaintiff’s body for nearly 10 years 

does not change § 1-15(c)’s application in this case. Therefore, the trial court correctly 

concluded that the four-year statute of limitations applies as a matter of law.

¶ 38 Moreover, whether Defendant Yalcinkaya negligently failed to remove the 

barrier after two to eight weeks is a question that goes to the heart of the malpractice 

claim, but does not need to be resolved to determine whether the Gore-Tex barrier 

had a therapeutic purpose for determining the correct statute of limitations period. 

If an object lost its therapeutic purpose, as Plaintiff basically argues, because it did 

not actually have a therapeutic effect due to improper use, this would render the 

inclusion of a therapeutic purpose in the statute superfluous. If our legislature 

intended the object to both have a therapeutic purpose and effect in order to be 

exempt from applying the 10-year statute of limitations, then the legislature would 

have included the conjunctive “and” instead of the disjunctive “or” between “purpose” 

and “effect.”

¶ 39 From a public policy and legislative intent perspective, the facts here seem 

precisely inapposite to what our legislature intended when drafting this 10-year outer 

limit for certain foreign object malpractice claims. Our Supreme Court, in the res 

ipsa loquitor context, has previously described “foreign bodies” as instruments “such 
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as sponges, towels, needles, glass, etc., [] introduced into the patient’s body during 

surgical operations and left there.” Mitchell v. Saunders, 219 N.C. 178, 182, 13 S.E.2d 

242, 245 (1941). We believe our legislature had a similar definition in mind when 

enacting the 10-year statute of limitations for foreign objects. 

¶ 40 Previously, the 10-year statute of limitations has been discussed by this Court 

in a scenario where a surgical instrument, a drain, was accidentally left in the 

plaintiff’s body. Hensell v. Winslow, 106 N.C. App. 285, 287, 416 S.E.2d 426, 428

(1992). In Hensell, the plaintiff sought damages for the defendant’s “failure to remove 

a nontherapeutic nondiagnostic foreign object (drain) from her body at the close of 

surgery.” Id. at 288, 416 S.E.2d at 428. The defendants asserted the statute of 

limitations as an affirmative defense, because more than four years had passed and 

the plaintiff did not bring suit within one year of discovering the drain. Id., 416 

S.E.2d at 429. This Court discussed in depth what constituted “discovery” for 

purposes of the statute’s qualification that the suit must be brought within one year 

of discovering the foreign object, and ultimately held that the statute of limitations 

barred her claim. Id. at 288-89, 416 S.E.2d at 429.

¶ 41 However, the 10-year statute of limitations has not been applied in a case such 

as this one, where a medical implant had been purposefully placed and left in a 

plaintiff’s body during surgery as part of a medical treatment. In fact, only one other 

North Carolina case grapples with a similar Gore-Tex barrier implant, Locklear v. 
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Lanuti, 176 N.C. App. 380, 626 S.E.2d 711 (2006). In Locklear, the plaintiff alleged

that the defendant doctor was negligent in repairing her hernias with a “Gortex 

mesh[.]” Id. at 386, 626 S.E.2d at 716. The defendant raised the affirmative defense 

of statute of limitations because the plaintiff filed suit more than three years after 

the defendant’s last act. Id. at 384, 626 S.E.2d at 715. The plaintiff argued that the 

statute of limitations should be tolled under the continuing treatment doctrine, but 

did not argue that the 10-year exception for foreign objects should apply. Id., 626 

S.E.2d at 715. Therefore, this Court did not consider whether the Gore-Tex barrier 

fell under the 10-year foreign object statute of limitations, but remanded the case for 

consideration of the continuing course of treatment doctrine. Id. at 387, 626 S.E.2d 

at 716.

¶ 42 Here, the Gore-Tex barrier was purposefully implanted by Defendant 

Yalcinkaya with the purpose of decreasing post-surgical pelvic adhesions on the 

surgical incision site. This case is unlike Hensell where the defendant accidentally 

left a surgical drain in the plaintiff’s body that was discovered many years later after 

causing health complications. For statutory construction and public policy reasons,

and because Defendant Yalcinkaya implanted the Gore-Tex barrier intending that it 

be permanently implanted, we decline to hold that a purposeful medical implant that 

initially serves a therapeutic purpose but potentially later has a non-therapeutic 

effect requires application of the 10-year statute of limitations period for foreign 
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objects. To do so would allow any therapeutic device implant, whether a Gore-Tex 

barrier, cardiac stent, pacemaker, knee replacement, etc., to be subject to the 10-year 

statute of limitations if an expert testifies that at some point during the 10-year 

period it became non-therapeutic. We do not believe this is what our legislature 

intended by enacting § 1-15(c), and therefore affirm the trial court’s application of 

§ 1-15(c) and grant of summary judgment on the medical malpractice issue.

E. Punitive Damages

¶ 43 North Carolina follows the general rule that “punitive damages do not and 

cannot exist as an independent cause of action, but are mere incidents of the cause of 

action.” Iadanza v. Harper, 169 N.C. App. 776, 783, 611 S.E.2d 217, 223 (2005) 

(internal marks and citation omitted). See also Funderburk v. JPMorgan Chase 

Bank, N.A., 241 N.C. App. 415, 425, 775 S.E.2d 1, 8 (2015) (“[A] claim for punitive 

damages is not a stand-alone claim.”). Therefore, because we hold that the trial court 

properly granted summary judgment on each of Plaintiff’s claims above, Plaintiff has 

no independent basis for punitive damages and this claim necessarily fails. 

III. Conclusion

¶ 44 For the foregoing reasons, we affirm the trial court’s grant of summary 

judgment in favor of Defendants.

AFFIRMED.

Chief Judge STROUD and Judge ARROWOOD concur.