The parents of a minor, Brittany Cottle, filed a North Carolina lawsuit in March 2017 against the defendants arising out of medical care Brittany received for back pain by Dr. Keith Pinkney Mankin, MD; specifically from injuries she allegedly suffered as a result of two surgeries he performed on her beginning when she was ten-years-old, with the last being performed on November 23, 2012. The lawsuit included claims of medical malpractice and negligent retention.
The trial court granted summary judgment for the defendants on all claims. The plaintiffs appealed, challenging the grant of summary judgment as to some claims but conceding that the medical malpractice claims are barred by the four-year statute of repose. N.C. Gen. Stat. § 1-15 (2023).
Negligent Retention Claim
The plaintiffs’ negligent retention claim involve allegations of conduct by certain defendants occurring up to 2012, before and during Dr. Mankin’s care of Brittany; specifically, the failure of those defendants to act upon their knowledge of complaints and concerns regarding Dr. Mankin’s general care of patients, unrelated to his care of Brittany.
In its opinion filed on May 21, 2024, the Court of Appeals of North Carolina stated, “We have carefully reviewed the briefs of the parties and the evidence in the record and conclude that the trial court erred in granting summary judgment on Plaintiff’s claim against ROC for negligently retaining Dr. Mankin as an employee of the Clinic to perform pediatric surgeries. We further conclude, however, that the trial court did not err in granting summary judgment on all other claims challenged by Plaintiffs in this appeal.”
The North Carolina appellate court explained, “Our Supreme Court has recently reiterated that our State recognizes “that an employer’s duty to exercise reasonable care of its employment and retention of employees could extend to [customers and clients],” further stating, “Our Court has held that negligent retention claims can extend to a hospital or group for negligent acts of their employees and doctors.”
“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.”
“Plaintiffs cite evidence in the record that, when viewed in the light most favorable to Plaintiffs, tend to show that these individuals became aware that Dr. Mankin was performing unnecessary surgeries on juvenile patients before he performed the surgeries on Brittany.”
The North Carolina appellate court therefore affirmed in part and reversed in part.
Source Cottle v. Mankin, MD, No. COA22-633.
If you or a loved one may have been harmed as a result of medical malpractice in North Carolina or in another U.S. state and may have a viable negligent retention claim, you should promptly find a North Carolina medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your negligent retention claim for you and represent you or your loved one in a medical malpractice negligent retention case, if appropriate.
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