Professional Negligence Law Reporter

A North Carolina appellate court held that a plaintiff alleging negligence under the doctrine of res ipsa loquitur was not subject to the state’s heightened pleading requirement of expert certification.

Before Henry Wyer underwent surgery at Alamance Regional Medical Center, he filled out a Medical Orders for Scope of Treatment (MOST) form, which indicated he wanted the full scope of treatment should he stop breathing or lose his pulse. A month later, when he was readmitted to the hospital, he did not sign an additional MOST form. Although he discussed his continued wishes regarding resuscitation with staff, a Do Not Resuscitate (DNR) order was entered into Wyer’s medical record. Wyer suffered a cardiopulmonary episode four days later and died after staff abided by the terms of the DNR order.

His estate sued the hospital, alleging negligence. The trial court granted the defendant’s motion to dismiss, citing the plaintiff’s failure to provide an expert certification as required under the state’s civil procedure rules.

Reversing, the appellate court noted that generally to survive dismissal, medical negligence plaintiffs must certify that an expert witness has reviewed the claim before filing. Here, the court found, the doctrine of res ipsa loquitur applies as to how the DNR order appeared in Wyer’s chart. This negated the need for expert certification review, the court said, adding that res ipsa loquitur permits the inference of negligence.

The court noted that the defense may raise defenses to rebut the allegation of negligence or the application of res ipsa loquitur. To survive a 12(b)(6) motion, however, the plaintiff was not required to include an expert certification.

Citation: Wyer v. Alamance Regional Med. Ctr., Inc., 881 S.E.2d 759 (N.C. Ct. App. 2022).

Plaintiff counsel: Kya Johnson, Greensboro, N.C