During cardiac surgery for an atrial septal defect, Dr. Mill discovered that Skylar’s initial diagnosis was incorrect: she had an unroofed coronary sinus, a rare condition that required a more complex procedure, which Dr. Mill performed. The night after surgery, Skylar developed complications that ultimately required her to remain in the hospital for two months. During that period, Skylar was placed on and taken off of life-support several times and had further surgical procedures. On July 30, 2016, Skylar died.
On May 31, 2019, the New York Times published an article about the PCS program at UNC Children’s Hospital that featured Plaintiffs. The article discussed concerns about Dr. Mill and the PCS program, as well as the STS’s data on cardiothoracic procedures and mortality rates for hospitals nationwide.
On December 5, 2019, Plaintiffs filed a complaint in Orange County Superior Court against Dr. Mill; Dr. Ro; and two other doctors, Kevin Kelly, M.D., and Timothy Hoffman, M.D.; along with five unnamed individuals, identified as “John Doe 1-5.” Plaintiffs asserted claims for constructive fraud and breach of fiduciary duty against all Defendants. The principal focus of Plaintiffs’ complaint was an allegation that “[a]s a result of . . . Defendants’ wrongful acts and omissions, Plaintiffs . . . were deceived and induced into allowing their gravely ill child[ ] to undergo surgery in what was, unknown to them, one of the most dangerous pediatric cardiac surgery programs in the United States.”
Dr. Mill and Dr. Ro asserted that they were entitled to summary judgment because, despite Plaintiffs’ characterization of their claims as “constructive fraud” and “breach of fiduciary duty,” Plaintiffs’ action sounded in medical malpractice. On July 23, 2024, the trial court entered an order granting Dr. Mill’s and Dr. Ro’s motions for summary judgment and dismissing Plaintiffs’ claims with prejudice as to all Defendants. The Plaintiffs timely filed notice of appeal.
The Court of Appeals of North Carolina stated in its December 17, 2025 Opinion: “The crux of the present appeal is whether Plaintiffs’ claims concern “the furnishing or failure to furnish professional services” by Dr. Mill and Dr. Ro … Our careful review of the record indicates that the determination of whether and how to provide the information and data at the core of Plaintiffs’ claims clearly “involves specialized knowledge and skills which are predominantly mental or intellectual.” Id. The allegations underlying Plaintiffs’ claims thus concern “the furnishing or failure to furnish professional services” by Dr. Mill and Dr. Ro. N.C. Gen. Stat. § 90-21.11(2)(a). Although Plaintiffs framed their claims in the language of breach of fiduciary duty and constructive fraud, their action nevertheless sounds in medical malpractice as broadly defined by § 90-21.11(2)(a) and our case law that has interpreted it … Consequently, Plaintiffs’ claims are subject to the pleading requirements of Rule 9(j), which mandates their dismissal.”
Source Jones v. Mill, M.D., No. COA24-983.
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