Tort/Negligence – Medical Malpractice – Misrepresentations and Omissions

Plaintiffs’ claims fell squarely within the statutory definition of medical malpractice.

We affirmed the trial court’s order.

This case arose from the death of Plaintiffs’ minor daughter, Skylar, following complications from cardiac surgery. In 2013, Skylar was diagnosed with an atrial septal defect by pediatric cardiologists, who advised Plaintiffs that surgical intervention might eventually be necessary. After Skylar later underwent surgery, she died from postoperative complications. Plaintiffs brought claims against Dr. Mill and Dr. Ro for breach of fiduciary duty and constructive fraud, alleging Defendants failed to disclose material information regarding the quality and outcomes of UNC’s pediatric cardiac surgery (PCS) program. The trial court granted summary judgment in favor of Defendants.

On appeal, Plaintiffs argued the trial court erred by concluding their claims sounded in medical malpractice and were therefore barred by their failure to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. Plaintiffs contended their claims were not based on the quality of medical care provided, but instead on alleged misrepresentations and omissions concerning program-wide mortality data, complication rates, and outcomes, which they asserted were intended to persuade them to consent to surgery at UNC. We disagreed.

The dispositive issue was whether Plaintiffs’ claims concerned “the furnishing or failure to furnish professional services” under N.C. Gen. Stat. § 90-21.11(2)(a). If so, the claims constituted medical malpractice and were subject to Rule 9(j)’s heightened pleading requirements. Although Plaintiffs framed their claims as breach of fiduciary duty and constructive fraud, the substance of the allegations focused on Defendants’ disclosures—or lack thereof—during preoperative counseling.

Defendants persuasively argued that decisions regarding whether and how to disclose mortality and outcomes data in the context of surgical risk discussions require clinical judgment and specialized medical expertise. Plaintiffs’ own experts acknowledged that congenital heart surgery encompasses hundreds of distinct procedures with varying risks, complication rates, and outcomes, making blanket disclosure of program-wide data potentially misleading or harmful. One expert agreed that surgeons must avoid overstating surgical risks, as doing so can unnecessarily frighten families.

Defense experts further explained that interpreting mortality statistics within databases such as the Society of Thoracic Surgeons (STS) database requires nuanced clinical judgment. Mortality rates vary widely depending on the specific procedure, patient condition, and institutional changes over time. Experts testified that data categories often combine disparate procedures and may not meaningfully reflect the risks associated with an individual patient’s surgery. They emphasized that determining what information is relevant and appropriate to share with a particular family involves professional medical judgment rather than administrative or purely factual disclosure.

Plaintiffs’ claims arose from alleged failures in professional judgment regarding preoperative disclosures. Such determinations involve specialized knowledge and intellectual skill and therefore constitute professional medical services. Consequently, Plaintiffs’ claims fell squarely within the statutory definition of medical malpractice, regardless of the labels used in the complaint.

Because Plaintiffs did not include the certification required by Rule 9(j), their claims were subject to dismissal.

Affirmed.

Jones v. Mill (Lawyers’ Weekly No., 011-306-25, 12 pp.) (Valerie Zachary, J.) Appealed from Orange County Superior Court (Allen Baddour, J.) The Lile-King Firm, by Phyllis Lile-King, and Brown, Moore & Associates, PLLC, by Jon R. Moore and Matthew Berthold, for plaintiffs-appellants. Robinson, Bradshaw & Hinson, P.A., by Matthew W. Sawchak and Erik R. Zimmerman, for defendants-appellees Michael R. Mill, M.D., and Pamela Ro, M.D.; Walker Allen, LLP, by Barry S. Cobb and Dennis W. Dorsey, for defendant-appellee Michael R. Mill, M.D.; and Huff Powell & Bailey, PLLC, by Pankaj K. Shere, Katherine Hilkey-Boyatt, and Rachel Samuelson, for defendant-appellee Pamela Ro, M.D. No brief filed on behalf of defendants-appellees John Doe 1-5. Tatum & Atkinson, PLLC, by Jon Ward, and Miller Law Group, PLLC, by MaryAnne M. Hamilton, for amicus curiae North Carolina Advocates for Justice in support of plaintiffs-appellants. Ellis & Winters LLP, by Michelle A. Liguori, Madeleine M. Pfefferle, and David A. Keirstead, for amicus curiae North Carolina Association of Defense Attorneys in support of defendants-appellees. Michael Best & Friedrich LLP, by Justin G. May, Carrie E. Meigs, and Matthew B. Couch, for amici curiae North Carolina Healthcare Association, North Carolina Medical Society, American Medical Association, North Carolina Health Care Facilities Association, North Carolina Assisted Living Association & North Carolina Senior Living Association in support of defendants-appellees. North Carolina Court of Appeals