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Moore v. Gaston Memorial Hospital8/16/2005
ent itself'" based on the juror's common knowledge or experience. Diehl, 140 N.C. App. at 378, 536 S.E.2d at 362 (quoting 57B Am. Jur. 2d Negligence § 1826 (1989) (footnotes omitted)).
Our Court has determined that res ipsa loquitur should be applied "somewhat restrictive " in medical malpractice cases, since "'the average juror unfit to determine whether plaintiff's injury would rarely occur in the absence of negligence[.]'" Howie, ___ N.C. App. at ___, 609 S.E.2d at 251 (quoting Schaffner v. Cumberland County Hosp. System, 77 N.C. App. 689, 692, 336 S.E.2d 116, 118 (1985)). The Court has recognized that the average juror cannot make such an assessment because "(1) most medical treatment involves inherent risks despite adherence to the appropriate standard of care and (2) [because of] 'the scientific and technical nature of medical treatment[.]'" Id. at ___, 609 S.E.2d at 251 (alteration in original) (quoting Schaffner, 77 N.C. App. at 692, 336 S.E.2d at 118).
In the case before us, plaintiff relies on res ipsa loquitur to support her claim that the perforation of her esophagus was the result of defendant's negligent act. However, the average juror would not, based on that juror's common knowledge or experience, be able to infer whether the perforation of plaintiff's esophagus was the result of a negligent act. Expert testimony would be necessary for the average juror to determine whether negligence occurred. The trial court did not err in dismissing plaintiff's complaint for failure to state a claim on the theory of res ipsa loquitur.
B.
Plaintiff also argues that the trial court erred in dismissing her complaint because it stated a claim under traditional negligence theories. Plaintiff argues that the complaint is sufficient to state a claim for negligence, both for her claim that defendant negligently perforated her esophagus, and that defendant negligently administered a Gentamicin overdose.
The North Carolina General Assembly has provided specific language addressing the prerequisites for alleging a medical malpractice claim in N.C. Gen. Stat. § 1A-1, Rule 9(j). Allen v. Carolina Permanente Medical Group, P.A., 139 N.C. App. 342, 345, 533 S.E.2d 812, 813-14 (2000). Rule 9(j) states:
Any complaint alleging medical malpractice by a health care provider as defined in G.S. 90-21.11 in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;
(2) The pleading specifically asserts that the medical care has been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or
(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.
N.C.G.S. § 1A-1, Rule 9(j).
North Carolina Rule of Evidence 702 provides in part that:
(b) In a medical malpractice action . . . a person shall not give expert testimony on the appropriate standard of health care . . . unless the person is a licensed health care provider in this State or another state and meets the following criteria:
(1) If the party against whom or on whose behalf the testim
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