Background Facts
Plaintiffs filed a North Carolina medical malpractice lawsuit against Defendants arising out of medical care Brittany Jeanne Cottle received for back pain, while a minor, from Dr. Keith Pinkney Mankin, MD (specifically, from injuries she claimed she suffered as a result of two surgeries he performed on her, the last being performed on November 23, 2012). The lawsuit was filed in March 2017, more than four years after Brittany’s last surgery, alleging medical malpractice claims and other claims, including negligent retention. In all claims, Plaintiffs sought damages for the injuries they alleged Brittany suffered from Dr. Mankin’s surgeries.
The trial court granted summary judgment for Defendants on all claims. On appeal, Plaintiffs only challenged the grant of summary judgment on claims they characterize as not being medical malpractice claims, contending that those claims survived the operation of the statute of repose, specifically allegations of conduct by certain Defendants occurring up to 2012, before and during Dr. Mankin’s care of Brittany; specifically, the failure of these Defendants to act upon their knowledge of complaints and concerns regarding Dr. Mankin’s general care of patients, unrelated to his care of Brittany.
Negligent Retention
The Court of Appeals of North Carolina stated in its Opinion filed on May 21, 2024: “It could be argued that ROC’s [Defendant Raleigh Orthopaedic Clinic, P.A. and Defendant Raleigh Orthopaedic Research Foundation] actions in retaining Dr. Mankin are, in fact, claims for medical malpractice, and thus barred by the statute of repose. However,
the plain language of Article 1B, Chapter 90 of our General Statutes, which concerns medical malpractice actions, does not suggest that the alleged actions of ROC for negligently retaining Dr. Mankin fall within the definition of medical malpractice. Specifically, under the Article, only a “health care provider” can be liable for “medical malpractice.” N.C. Gen. Stat. § 90-21.11 (2023). Section 90-21.11(a) defines who is considered a “health care provider.” 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.”
Section 90-21.11(2) defines a “medical malpractice action” as either a claim for damages (1) “for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical . . . care by a health care provider” or (2) “against a hospital, a [duly licensed] nursing home, or [a duly licensed] adult care home [alleging] a breach of administrative or corporate duties, including [ ] allegations of . . . negligent monitoring and supervision . . . .”
It may be that the actions alleged against ROC for negligent retention are a breach of its administrative duties and, therefore, fall within a claim for medical malpractice. However, the plain language of Section 90-21.11(2) does not include a medical practice, such as ROC, within its gamut. There is no evidence that ROC is a hospital, a nursing home, or adult care home. Accordingly, we must conclude that Plaintiffs’ claim against ROC for negligent retention is not barred by the statute of repose, as the claim is not one of malpractice under the relevant statute.”
Source Cottle v. Mankin, M.D., No. COA22-633.
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