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Russell v. Adams3/18/1997
GREENE, Judge.
Anne Russell (plaintiff) appeals the dismissal pursuant to N.C. Gen Stat. § 1A, Rule 12(b)(6) (1996) of her complaint which alleged that Dr. Donald Adams (Dr. Adams), a licensed psychologist in North Carolina, had committed medical malpractice, negligently and intentionally inflicted emotional distress, and made slanderous statements which caused the plaintiff to be ostracized from her daughter, Betsy Johnson (Ms. Johnson).
The relevant allegations of the complaint, filed on 12 September 1995, show that in 1989 Ms. Johnson sought the services of Dr. Adams. In April of 1989 Ms. Johnson told plaintiff that Dr. Adams had told her, during his treatment of her, that plaintiff was mentally ill with a borderline personality and in need of extensive psychotherapy. Dr. Adams recommended that Ms. Johnson sever all ties with plaintiff. The relationship between plaintiff and Ms. Johnson deteriorated during the professional relationship Ms. Johnson had with Dr. Adams. In June of 1989 Ms. Johnson told plaintiff that she was not to attempt to visit with her (Ms. Johnson's) child. Ms. Johnson threatened to kill plaintiff and rejected all of plaintiff's efforts to continue a loving relationship, "justifying these actions with the [purported] 'diagnosis' of Dr. Adams that [plaintiff] is a 'borderline personality' who has abused" her. On 8 September 1992 Dr. Adams informed James Alfred Miller (Miller), plaintiff's father, that she suffers from a mental illness known as borderline personality. On 2 November 1994 Miller related this information to plaintiff. The plaintiff "does not have a borderline personality" and is not "mentally unstable" and has never been a patient of Dr. Adams.
The issues presented are whether: (I) there is a requirement of a physician-patient relationship in order to state a claim for medical malpractice against a psychologist in North Carolina; and (II) the claims for infliction of emotional distress are barred by the statute of limitations.
"A motion to dismiss for failure to state a claim upon which relief may be granted under [N.C.G.S. § 1A-1, Rule 12(b)(6) (1990)] is addressed to whether the facts alleged in the complaint, when viewed in the light most favorable to the plaintiffs, give rise to a claim for relief on any theory." Ford v. Peaches Entertainment Corp., 83 N.C. App. 155, 156, 349 S.E.2d 82, 83 (1986), cert. denied, 318 N.C. 694, 351 S.E.2d 746 (1987).
I
"It is well settled that the relationship of physician to patient must be established as a prerequisite to an actionable claim for medical malpractice." Easter v. Lexington Memorial Hosp., 303 N.C. 303, 305-06, 278 S.E.2d 253, 255 (1981); Childers v. Frye, 201 N.C. 42, 45, 158 S.E. 744, 746 (1931); see Mozingo v. Pitt County Memorial Hosp., 331 N.C. 182, 189, 415 S.E.2d 341, 345 (1992) (physician supervising resident actually treating patient "may be held accountable" to patient). In this case there are no allegations, when considered in the light most favorable to the plaintiff, that the plaintiff had a relationship of patient-physician with Dr. Adams.
The plaintiff nonetheless argues that privity is "not a requirement for a claim of malpractice against a psychologist" because they have the "ability to render" and often do render "unsolicited psychological" opinions about persons they are not treating in an effort to assist the person they are treating. In rendering these opinions, the plaintiff contends, the Code of Ethics of Psychologists and the North Carolina Psychology Act (Chapter 90, Article 18A) require the psychologist to avoid misrepresentations that may mislead or exploit persons other than the patient. See N.C.G.S. § 90-270.15(
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