An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in 

accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of 

Appellate Procedur e .

NO. COA14-136

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2014

WANDA WRIGHT AND JAMES WRIGHT,

Plaintiffs,

v. New Hanover County

No. 11 CVS 4080

ATLANTIC ORTHOPEDICS, P.A., AND 

NEW HANOVER REGIONAL MEDICAL 

CENTER,

Defendants.

Appeal by plaintiffs from order entered 22 August 2013 by 

Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. 

Heard in the Court of Appeals 4 June 2014.

The Mitchell Law Group, by Ronnie M. Mitchell, and The Law 

Offices of William S. Britt, by William S. Britt, for 

plaintiff-appellants.

Walker, Allen, Grice, Ammons & Foy, L.L.P., by Jerry A. 

Allen, Jr., and Louis (Trey) F. Foy, III, for defendantappellees.

BRYANT, Judge.
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Where discovery reveals that a claim for medical negligence 

is not supported by the facts, a dismissal of the claim pursuant 

to Rule 9(j) is appropriate.

On 16 April 2009, plaintiff Wanda Wright underwent a total 

knee arthroplasty in her left knee. The arthroplasty was 

performed by Dr. Walter W. Frueh, an orthopedic surgeon at 

Atlantic Orthopedics, and the operation was conducted at New 

Hanover Regional Medical Center. Although the surgery was 

successful, a six-inch skin laceration was noted above Wright’s 

left ankle when her surgical drapes were removed. Wright was 

subsequently referred to a plastic surgeon for the skin 

laceration. On 21 April, Wright was discharged from the 

hospital with instructions to continue rehabilitation and skin 

care services following her knee surgery and laceration. On 28 

April, the plastic surgeon removed the sutures from Wright’s 

skin laceration. 

On 30 September 2011, Wright and her husband, plaintiff 

James Wright, filed a complaint against defendants Dr. Frueh, 

Atlantic Orthopedics, and New Hanover Regional Medical Center. 

The complaint alleged the following claims brought by Mrs. 

Wright: negligence against Dr. Frueh for causing the skin 

laceration; claims against Atlantic Orthopedics based on
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respondeat superior for the negligence of its physician, Dr. 

Frueh; and claims against New Hanover Regional Medical Center 

based on respondeat superior for the negligence of its employees 

and staff in causing the skin laceration. A claim for loss of 

consortium was brought by Mr. Wright. 

On 26 July 2011, Atlantic Orthopedics filed a motion for 

summary judgment pursuant to Rule 56, and a motion to dismiss 

pursuant to, inter alia, Rule 9(j). Thereafter, plaintiffs took 

a voluntary dismissal without prejudice as to defendants Dr. 

Frueh and New Hanover Regional Medical Center. Plaintiffs also 

made a motion to amend the pleadings to conform to the evidence. 

On 22 August, the trial court granted Atlantic Orthopedics’

motion to dismiss plaintiffs’ complaint for failure to comply 

with the requirements of Rule 9(j); no formal ruling was made as 

to plaintiffs’ motion to amend the pleadings. Plaintiffs 

appeal. 

_________________________________

In their sole issue on appeal, plaintiffs contend the trial 

court erred in dismissing their complaint pursuant to Rule 9(j). 

We disagree.

Rule 9(j) unambiguously requires a 

trial court to dismiss a complaint if the 

complaint's allegations do not facially 

comply with the rule's heightened pleading 
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requirements. Additionally, this Court has 

determined that even when a complaint 

facially complies with Rule 9(j) by 

including a statement pursuant to Rule 9(j), 

if discovery subsequently establishes that 

the statement is not supported by the facts, 

then dismissal is likewise appropriate. In 

considering whether a plaintiff's Rule 9(j) 

statement is supported by the facts, a court 

must consider the facts relevant to Rule 

9(j) and apply the law to them. In such a 

case, this Court does not inquire as to 

whether there was any question of material 

fact, nor do we view the evidence in the 

light most favorable to the plaintiff. 

Rather, our review of Rule 9(j) compliance 

is de novo, because such compliance clearly 

presents a question of law . . . .

Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 

238, 255—56, 677 S.E.2d 465, 477 (2009) (citations and 

quotations omitted). Rule 9(j) “does not provide a procedural 

mechanism by which a defendant may file a motion to dismiss a 

plaintiff's complaint.” Id. at 255, 677 S.E.2d at 477. 

However, “[t]he Rules of Civil Procedure provide other methods 

by which a defendant may file a motion alleging a violation of 

Rule 9(j).” Id.; see also Thigpen v. Ngo, 355 N.C. 198, 200, 

558 S.E.2d 162, 164 (2002) (the trial court granted defendants' 

"motions to dismiss pursuant to Rules 9(j) and 12(b)(6)"); Trapp 

v. Maccioli, 129 N.C. App. 237, 239, 497 S.E.2d 708, 709 (the

defendant filed a motion to dismiss "pursuant to Rule 9(j)").
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Plaintiffs contend the trial court erred in granting 

Atlantic Orthopedics’ motion to dismiss because plaintiffs’ 

complaint met the pleading requirements of Rule 9(j). 

Plaintiffs gave the following statement of Rule 9(j) 

certification:

Pursuant to Rule 9(j) of the North Carolina 

Rules of Civil Procedure and prior to the 

filing of this Complaint, the care and 

treatment of Plaintiff Wanda Wright by the 

Defendants has been reviewed by a person who 

is expected to qualify under Rule 702 of the 

North Carolina Rules of Civil Procedure, and 

who is willing to testify that the 

Defendants’ care and treatment of the 

Plaintiff Wanda Wright breached the 

appropriate standards of care, that they 

failed to use their best medical judgment 

and/or failed to use reasonable care and 

diligence applying their knowledge, training 

and skill to Plaintiff’s care, proximately 

resulting in injury and damage to the 

Plaintiff, Wanda Wright.

Rule 9(j) of our Rules of Civil Procedure states: 

Medical malpractice. — Any complaint 

alleging medical malpractice by a health 

care provider pursuant to G.S. 90-21.11(2)a.

in failing to comply with the applicable 

standard of care under G.S. 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 
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expert witness under Rule 702 of the 

Rules of Evidence and who is willing 

to testify that the medical care did not 

comply with the applicable standard 

of care;

(2) 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 that the 

complainant will seek to have qualified 

as an expert witness by motion under 

Rule 702(e) of the Rules of Evidence 

and who is willing to testify that the 

medical care did not comply with the 

applicable standard of care, and the 

motion is filed with the complaint; or

(3) The pleading alleges facts 

establishing negligence under the 

existing common-law doctrine of res 

ipsa loquitur.

N.C. Gen. Stat. § 1A-1, Rule 9(j)(1—3) (2013). 

We agree with plaintiffs that the statement in their 

complaint facially meets the requirements of Rule 9(j), as 

plaintiffs have pleaded the elements required by Rule 9(j)(a). 

However, a complaint may facially meet the requirements of Rule 

9(j), yet may later fail Rule 9(j) based on discovery. 

In its order granting Atlantic Orthopedics’ motion to 

dismiss pursuant to Rule 9(j), the trial court noted that 

plaintiffs failed to comply with the requirements of Rule 9(j), 

and “that the motion should be allowed based on the deposition 
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testimony of the plaintiffs’ expert witness, Dr. Staley 

Jackson[.]” 

Dr. Jackson, plaintiffs’ expert witness, testified during 

his deposition that, in his opinion, Dr. Frueh had not “violated 

any standards of care or was involved in any negligent acts. I 

did not feel that he had any involvement in [plaintiff’s] 

injury.” Upon further questioning, Dr. Jackson stated that, 

based on his review of defendants’ deposition testimony and 

plaintiff’s medical records, the only person who was likely 

negligent in causing plaintiff’s skin laceration was the 

physician’s assistant who removed plaintiff’s surgical drapes. 

We agree with the trial court that plaintiffs have failed 

to meet the requirements of Rule 9(j), as the deposition 

testimony of plaintiffs’ expert witness, Dr. Jackson, clearly 

indicates that he did not feel the evidence demonstrated

negligence on the part of Dr. Frueh or Atlantic Orthopedics. 

Instead, Dr. Jackson’s deposition supported a finding of 

possible negligence only against Dr. Frueh’s physician’s 

assistant. Thus, as the deposition testimony of plaintiffs’ 

expert witness demonstrates that plaintiffs’ complaint was not 

supported by the facts, a dismissal pursuant to Rule 9(j) was 

appropriate. See Robinson v. Duke Univ. Health Sys., ___ N.C. 
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App. ___, ___, 747 S.E.2d 321, 328 (2013) (“[E]ven when a 

complaint facially complies with Rule 9(j) by including a 

statement pursuant to Rule 9(j), if discovery subsequently 

establishes that the statement is not supported by the facts, 

then dismissal is likewise appropriate.” (citing Barringer, 197 

N.C. App. at 255, 677 S.E.2d at 477)).

Plaintiffs also argue that because an affidavit by Dr. 

Jackson was offered alongside the motion to amend the pleadings, 

the trial court erred in dismissing the complaint under Rule 

9(j). 

"[O]ur standard of review for motions to amend pleadings 

requires a showing that the trial court abused its discretion." 

Delta Envtl. Consultants of N.C., Inc. v. Wysong & Miles Co., 

132 N.C. App. 160, 165, 510 S.E.2d 690, 694 (1999) (citation 

omitted). "A trial court abuses its discretion when its 

decision is manifestly unsupported by reason or so arbitrary 

that it could not have been the result of a reasoned decision." 

Ehrenhaus v. Baker, 216 N.C. App. 59, 71, 717 S.E.2d 9, 18 

(2011) (citations and quotation omitted), appeal dismissed and 

disc. review denied, 366 N.C. 420, 735 S.E.2d 332 (2012). 

Proper reasons for denying a motion to amend include undue 

delay, unfair prejudice, bad faith, futility of amendment, and 
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repeated failure of the moving party to cure defects by other 

amendments. Delta, 132 N.C. App. at 166, 510 S.E.2d at 694.

Here, the record does not include a clear ruling on 

plaintiffs’ motion to amend. Instead, the motion in the record 

does not bear a file stamp, although the affidavit accompanying

the motion does bear a filing stamp of 19 August 2013. 

Nevertheless, based on the trial court’s dismissal of the case, 

it seems clear that plaintiff’s motion to amend was not allowed. 

Plaintiffs’ argument on appeal asserts the viability of a claim 

based on an affidavit offered with a motion to amend. However,

since plaintiffs do not argue on appeal the denial of the motion 

to amend, plaintiffs’ argument is deemed abandoned. See N.C. R. 

App. P 28(a) (2013) ("The scope of review on appeal is limited 

to issues so presented in the several briefs. Issues not 

presented and discussed in a party’s brief are deemed 

abandoned."). Therefore, we do not consider plaintiff’s 

arguments regarding the contents of Dr. Jackson’s affidavit, and 

make no determination as to whether the contents of the 

affidavit would suggest a medical negligence claim against Dr. 

Frueh’s physician’s assistant based on any legal theory. 

Plaintiffs further contend the trial court erred in 

granting Atlantic Orthopedics’ motion to dismiss because 
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plaintiffs’ complaint is rooted in common-law negligence and res 

ipsa loquitor and, therefore, the requirements of Rule 9(j) are 

not applicable. In pleading a claim for medical negligence, a 

claim may satisfy the requirements of Rule 9 if the claim 

“alleges facts establishing negligence under the existing 

common-law doctrine of [negligence or] res ipsa loquitur.” 

N.C.G.S. § 1A-1, Rule 9(j)(3). 

Here, plaintiffs took a voluntary dismissal as to 

defendants Dr. Frueh and New Hanover Regional Medical Center. 

In the complaint against Atlantic Orthopedics, plaintiffs 

alleged only that: “All the acts and/or omissions of each of the 

individual Defendant physicians were done within the course and 

scope of their agency and employment for these corporate 

Defendants and these corporate Defendants are negligent under 

the doctrine of respondeat superior.” This allegation by 

plaintiffs is narrowly tailored, as it strictly limits 

plaintiffs’ claim of negligence against Atlantic Orthopedics to 

that of respondeat superior for the acts of “the individual 

Defendant physicians.” 

The evidence before the trial court indicated that only one 

defendant physician, Dr. Frueh, performed any medical procedures 

on plaintiff. Indeed, plaintiffs’ complaint acknowledges that 
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Dr. Frueh was the sole defendant physician, as Dr. Frueh is the 

only physician listed in the complaint. Thus, plaintiffs’ claim 

against Atlantic Orthopedics cannot be deemed to include a claim 

for common-law negligence, as it is narrowly couched to address 

only a claim of respondeat superior for the acts of Atlantic 

Orthopedics’ physician, Dr. Frueh. 

Plaintiffs’ argument that the complaint raises a claim for 

res ipsa loquitor is likewise without merit. A claim of res 

ipsa loquitor in a medical malpractice claim is appropriate only 

where the plaintiff’s claim allows an ordinary person to 

determine from the facts presented that the plaintiff’s injury 

was one that “does not happen in the ordinary course of things, 

where proper care is exercised.” Robinson, ___ N.C. App. at 

___, 747 S.E.2d at 330 (citations omitted). 

Here, plaintiffs’ complaint fails to raise even a hint of 

res ipsa loquitor against Atlantic Orthopedics for, as discussed 

previously, plaintiffs’ complaint is strictly limited to 

alleging only a claim of respondeat superior against Atlantic 

Orthopedics’ physician. We further note that because plaintiffs 

took a voluntary dismissal as to Dr. Frueh, this has effectively 

dismissed plaintiffs’ claim against Atlantic Orthopedics in its 

entirety, as the claim based on respondeat superior is 
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specifically tied to the negligent acts of Atlantic Orthopedics’ 

physician, Dr. Frueh. 

Accordingly, the ruling of the trial court granting 

Atlantic Orthopedics’ motion to dismiss is affirmed.

Affirmed. 

Judges CALABRIA and GEER concur. 

Report per Rule 30(e).