Cottle v. Mankin

The minor plaintiff was subjected to an unnecessary spinal fusion surgery by a surgeon (Mankin) who allegedly made a habit of performing unnecessary spinal surgeries on minors. Plaintiffs sued Mankin, the orthopedic practice for which he worked, and several other associated providers.  The plaintiffs presented evidence that the practice and the associated providers were aware of multiple complaints about Mankin, with some of said providers even having filed complaints against him for performing unnecessary surgeries on minors.  The plaintiffs asserted a claim of negligent retention/supervision against the medical practice.  They also asserted claims of breach of fiduciary duty, fraud and constructive fraud against the associated providers for failure to disclose the issues with Mankin to plaintiff or her parents. The trial court entered summary judgment for defendants based in part on the 4-year statute of repose for professional negligence under N.C.G.S. § 1-15(c).

The COA affirmed on most claims but reversed the dismissal of the claims against the office practice. Specifically, the COA held that the 4-year statute of repose did not apply because a medical practice is not a “health care provider” under the applicable statutory definition. The COA noted that the “only non-human entities incorporated within the definition of ‘health care provider’ are ‘[a] hospital, a [duly licensed] nursing home and [a duly licensed] adult care home.”  As a medical office practice such as the applicable defendant at issue was not such an entity, the COA held that the negligent retention/supervision claim was not a medical malpractice action, and therefore not barred by the applicable statute of repose.

All issues are now before the Supreme Court of North Carolina, with both sides being appellees and appellants as to certain issues. NCAJ filed an amicus brief in support of plaintiffs in their capacity as appellees on the claims against the medical practice. Although the NCAJ brief concedes that a medical practice is within the definition of a “health care provider,” the term “health care provider” is not used in the applicable section of the statute.

There are two distinct types of medical malpractice claims against corporate entities such as medical practices. The first is a respondeat superior claim for the actual clinical errors of its employees. This type is governed by N.C.G.S. § 90-21.11(2)(a), which applies to all “health care providers.” This case is about the second type, which involves direct liability for the administrative negligence of the practice itself. Negligent hiring, supervision and retention claims fall within this second category, which are governed by § 90-21.11(2)(b). Importantly, unlike respondeat superior claims, the General Assembly chose not to use the term “health care provider” with regard to administrative claims, but instead made this section applicable only to hospitals, licensed nursing homes and licensed adult care homes. Consequently, whether a medical practice is a “health care provider” is beside the point. A medical practice is absolutely not listed among the types of entities to which § 90-21.11(2)(b) applies. Thus, an administrative claim like this one is outside of the definition of a medical malpractice action. Consequently, the statute of repose does not apply, and the Court of Appeals should be affirmed as to these claims.