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Keys v. Duke University11/2/1993
On 12 March 1990, plaintiff's husband, Harry E. Keys, was admitted to Duke University Hospital for congestive heart failure, and on 14 March 1990, he underwent cardiac surgery. In plaintiff's complaint she alleged that on 3 April 1990, plans were being made to discharge Mr. Keys to his home. Further, plaintiff alleged that on 19 April 1990, Mr. Keys was mistakenly given medication which resulted in a "Code 5" which resulted in Mr. Keys being sent back into the intensive care unit. Plaintiff also alleged that Mr. Keys showed signs of significant improvement and that he was able to communicate on or about 27 April 1990, at which time a morphine drip was initiated and increased to twenty milligrams per hour at about 11:00 p.m. On 28 April 1990, at 2:00 p.m., defendants extubated Mr. Keys without oxygen support, and he was pronounced dead at 2:50 p.m.
Plaintiff brought this action against defendants for the wrongful death of Mr. Keys and for loss of consortium. Plaintiff brought her wrongful death claim as administratrix of Mr. Keys' estate under the wrongful death statute, N.C. Gen. Stat. § 28A-18-2, and she brought her loss of consortium claim in her individual capacity. Upon motion by defendants, the trial court dismissed the consortium claim of plaintiff brought in her individual capacity. From the dismissal of her claim, plaintiff appeals.
Plaintiff, in her sole assignment of error, contends that the trial court erred in dismissing her claim for loss of consortium pursuant to N.C. R. Civ. P. 12(b)(6), for failure to state a claim upon which relief can be granted. We disagree.
"A Rule 12(b)(6) motion tests the legal sufficiency of the claim." Chrysler Credit Corp. v. Rebhan, 66 N.C. App. 255, 257, 311 S.E.2d 606, 608 (1984).
Under the "notice theory of pleading," a statement of a claim can withstand a motion to dismiss if it gives the other party notice of the nature and basis of the claim sufficient to enable the party to answer and prepare for trial. . . . A claim for relief should not be dismissed unless it appears beyond doubt that the party is entitled to no relief under any state of facts which could be presented in support of the claim. . . . Therefore, the essential question on a Rule 12(b)(6) motion, is whether the complaint, when liberally construed, states a claim upon which relief can be granted on any theory.
Barnaby v. Boardman, 70 N.C. App. 299, 302, 318 S.E.2d 907, 909, disc. review allowed, 312 N.C. 621, 323 S.E.2d 921 (1984), rev'd on other grounds, 313 N.C. 565, 330 S.E.2d 600 (1985) (emphasis in original) (citations omitted).
Defendants contend that the trial court properly dismissed plaintiff's claim brought in her individual capacity for loss of consortium based on the ground that the wrongful death statute, N.C. Gen. Stat. § 28A-18-2 (Cum. Supp. 1992), encompasses loss of consortium claims, and any common law claim encompassed by the wrongful death statute must be asserted under this statute by the personal representative for the deceased. We agree.
This Court has held that "any common law claim which is now encompassed by the wrongful death statute must be asserted under that statute." Christenbury v. Hedrick, 32 N.C. App. 708, 712, 234 S.E.2d 3, 5 (1977) (holding proper the dismissal of an action by the surviving mother for medical and funeral expenses incurred on behalf of her unemancipated minor children who died as a result of an automobile ac
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