Cottle v. Mankin

• Court: Court of Appeals of North Carolina
• Decided: May 21, 2024
• Docket: 22-633
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-633

Filed 21 May 2024

Wake County, No. 19 CVS 11540

BRITTANY JEANNE COTTLE, TERRY ALAN COTTLE and CYNTHIA BALKCUM COTTLE, Plaintiffs, v.

KEITH PINKEY MANKIN, MD; JEANNE HALL, RN, MSN, FNP-C; BRADLEY K. VAUGHN, MD; WALLACE F. ANDREW, JR., MD; KARL STEIN; JOSEPH U. BARKER, MD; MARK R. MIKLES, MD; RALEIGH ORTHOPAEDIC CLINIC, P.A.; and RALEIGH ORTHOPAEDIC RESEARCH FOUNDATION, Defendants.

Appeal by plaintiffs from summary judgment entered 16 March 2022 by Judge

William R. Pittman in Wake County Superior Court. Heard in the Court of Appeals

25 January 2023.1

Mast, Johnson, Trimyer, Wright, Booker & Van Patten, P.A., by Charles D. Mast and Nichole G. Booker, for plaintiff-appellants.

Huff, Powell, & Bailey, PLLC, by Pankaj Shere, for defendant-appellants.

1 This matter was orally argued before Judges Dillon, Murphy, and Flood. Judge Murphy

subsequently recused. By Order entered on 6 May 2024, Judge Stading substituted for Judge Murphy to consider the matter based on the briefs and record and on the recording of the 25 January 2023 oral argument. COTTLE V. MANKIN

Opinion of the Court

DILLON, Chief Judge.

Plaintiffs commenced this action against Defendants arising out of medical

care Plaintiff Brittany Jeanne Cottle received for back pain, while a minor, from Dr.

Keith Pinkney Mankin, MD, specifically from injuries she claimed she suffered as a

result of two surgeries he performed on her, the last being performed on 23 November

2012. Plaintiffs Terry Alan Cottle and Cynthia Balkum Cottle are Brittany’s parents.

Plaintiffs commenced this action in March 2017, more than four years after

Brittany’s last surgery, against Dr. Mankin and others, alleging medical malpractice

claims and other claims, including negligent retention. In all claims, Plaintiffs seek

damages for the injuries they alleged Brittany suffered from Dr. Mankin’s surgeries.

Through a series of orders, the trial court granted summary judgment for

Defendants on all claims. On appeal, Plaintiffs challenge the grant of summary

judgment only as to some claims. They do not appeal the grant of summary judgment

on their medical malpractice claims, apparently conceding that those claims are

barred by the four-year statute of repose. See N.C. Gen. Stat. § 1-15 (2023). Further,

Plaintiffs do not appeal the grant of summary judgment on any claim they alleged

against Dr. Mankin (medical malpractice or otherwise); and, therefore, Dr. Mankin

is not involved in this appeal.

Rather, in this appeal, Plaintiffs challenge only the grant of summary

judgment on claims they characterize as not being medical malpractice claims,

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essentially contending that those claims survived the operation of the statute of

repose. Those claims are as follows:

Some claims involve allegations of conduct by certain Defendants occurring up

to 2012, before and during Dr. Mankin’s care of Brittany, specifically, the failure of

these Defendants to act upon their knowledge of complaints and concerns regarding

Dr. Mankin’s general care of patients, unrelated to his care of Brittany.

For instance, Plaintiffs allege claims of negligent retention and/or supervision

against Defendant Raleigh Orthopaedic Clinic, P.A., and Defendant Raleigh

Orthopaedic Research Foundation (collectively, “ROC”). The Clinic is a physician

practice with whom Dr. Mankin was associated while he treated Brittany. The

Foundation, now dissolved, was a non-profit organization associated with the Clinic.

Dr. Mankin was associated with ROC until early 2013.

Also, Plaintiffs assert claims of fraud and constructive fraud, breach of

fiduciary duty and negligent/intentional infliction of emotional distress against ROC

and several individuals associated with ROC prior to 2013 who allegedly knew of

issues that Dr. Mankin had with other patients. These other Defendants include: (1)

Defendant Jeanne Hall, a nurse who worked under and assisted Dr. Mankin in his

care for Brittany; (2) Defendant Bradley K. Vaughn, MD, who served as ROC’s

president until 2008, where evidence shows that another doctor expressed a concern

to him that Dr. Mankin was performing unnecessary back surgeries on young girls

and that he told Dr. Mankin that “half of Raleigh” thinks Dr. Mankin is wrong in

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providing such treatment and to be careful; (3) Defendant Wallace F. Andrew, Jr.,

MD, a doctor associated with ROC who expressed concerns about Dr. Mankin,

recommending in 2012 that Dr. Mankin be disassociated with ROC, a

recommendation which went unheeded for a time; and (4) Defendant Karl Stein, who

served as the executive director of ROC and who received numerous complaints

regarding Dr. Mankin, including three cases in 2012, yet ROC retained its association

with Dr. Mankin through 2012, the time during which Dr. Mankin performed his last

surgery on Brittany.

Other claims involve conduct by certain Defendants occurring after 2012, after

Dr. Mankin last performed surgery on Brittany. These claims are asserted against

Defendants Joseph U. Barker, MD, and Mark R. Mikels, MD, who were associated

with ROC and who saw Brittany in 2016 when she returned after over three years,

complaining of pain from Dr. Mankin’s earlier surgeries. Plaintiffs assert claims of

breach of fiduciary duty, constructive fraud, fraud, and negligent and/or intentional

infliction of emotional distress. Essentially, Plaintiffs allege Drs. Barker and Mikels

did not disclose that Dr. Mankin had provided bad care, which became (or should

have become) evident to them during their 2016 interaction with Brittany; that Dr.

Mankin had issues with other patients; or the reasons Dr. Mankin was no longer

associated with ROC. Evidence shows that neither doctor informed Brittany that

screws in her hip inserted by Dr. Mankin in 2012 were ineffective and that a spinal

fusion performed by Dr. Mankin in 2012 was flawed.

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I. Factual Background

The following is a more detailed discussion of the evidence. In June 2010,

Brittany, then 14 years old, sought treatment for back pain at ROC. During an

appointment, Dr. Mankin diagnosed Brittany with spinal stenosis and lumbar stress

syndrome. Three months later, in September 2010, Brittany underwent an MRI,

which did not indicate stenosis. However, the next month, in October 2010, Dr.

Mankin recommended that Brittany undergo fusion surgery. During his pre-

operative diagnosis, Dr. Mankin diagnosed Brittany with “spondylolysis with stenosis

L5-S1.” This was Dr. Mankin’s first mention of a spondylolysis diagnosis.

Around or about late 2011 or early 2012, the father of another of Dr. Mankin’s

surgical patients complained to Dr. Andrew and Defendant Stein that Dr. Mankin

never actually performed the fusion he claimed to have performed on his daughter

and that the surgery he performed was unnecessary. On 12 March 2012, Dr. Neil

Vining, a pediatric orthopedist newly admitted to ROC, presented three pediatric

cases to Defendant Stein, Dr. Andrew, and an officer of Medical Mutual Insurance

Company demonstrating that Dr. Mankin was a significant danger to his patients.

The Company officer recommended offering settlements for the mistreatment, and

Dr. Andrew suggested that Dr. Mankin be fired. However, Dr. Mankin continued to

practice at ROC throughout 2012.

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On 29 March 2012, an ROC doctor received an email from an outside

practitioner, describing the “community’s concern” with Dr. Mankin’s “bad results.”

He gave a printed copy of the email to ROC’s then executive director, Mr. Stein.

During July 2012, Brittany returned to Dr. Mankin with continued back pain.

On 23 November 2012, with the assistance of Nurse Hall, Dr. Mankin performed a

second surgery on Brittany, a left sacroiliac fusion and a stabilization fixation with

three screws. Although Dr. Mankin’s operative report stated the screws were

properly fixed, operating room imaging studies demonstrated that two of the three

screws were not fixed. Dr. Mankin did not perform any more surgeries on Brittany.

In early 2013, Dr. Mankin underwent a peer review after another ROC doctor

had shared his intention to send a letter to WakeMed expressing his view that Dr.

Mankin was a danger in the way he treated some of his patients. On 13 March 2013,

following the review, Dr. Mankin resigned from ROC. As part of a separation

agreement between ROC and Dr. Mankin, the parties agreed they would not

disparage one another professionally.

ROC never reported any concerns about Dr. Mankin to the North Carolina

Medical Board (“NCMB”), and Dr. Mankin subsequently opened his own private

practice. Upon learning of this, Dr. Vining wrote a letter to the NCMB, detailing

surgeries, which Dr. Mankin performed without any legitimate indications that the

surgeries were necessary, and Dr. Mankin’s misrepresentation of findings to justify

performing such surgeries. After receiving Dr. Vining’s letter, the NCMB issued a

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Non-Disciplinary Consent Order, under which Dr. Mankin agreed to no longer

perform surgery, to move from North Carolina to pursue non-medical interests, and

to not return to North Carolina to practice medicine.

In 2016, Brittany’s back pain recurred, and Plaintiffs called ROC to schedule

an appointment. Brittany found that Dr. Mankin no longer practiced at ROC and

scheduled an appointment with Dr. Mikles, who had participated in Dr. Mankin’s

2013 peer review. During two visits to ROC, neither Dr. Mikles nor Dr. Barker

informed Brittany that the screws in her hips were ineffective, that her spinal fusion

was flawed, that Dr. Mankin had been asked to resign, that Dr. Mikles was involved

with the review board that triggered Dr. Mankin’s resignation, or that Dr. Mankin

could no longer practice medicine in North Carolina. Shortly after her visits with Dr.

Mikles, Brittany saw another doctor associated with another practice, who told her

family that Brittany never had spinal stenosis nor spondylolysis, that there was little

evidence of a fusion ever having occurred, that she did not need the SI joint fusion,

and the screws used during this fusion were never properly placed.

On 21 March 2017, pursuant to a 21 November 2016 order extending the

statute of limitations under North Carolina Rule of Civil Procedure 9(j), Plaintiffs

filed a Complaint against Defendants alleging medical malpractice, breach of

fiduciary duty, constructive fraud, fraud, and other related claims. Four months

later, in July 2017, the trial court granted WakeMed’s motion to dismiss all claims

against it, finding they were barred by the four-year statute of repose under N.C.Gen.

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Stat. § 1-15(c). Later that month, the trial court also entered an order dismissing the

medical malpractice claims against Dr. Mankin and Nurse Hall, and the negligence

and/or gross negligence claims against Dr. Vaughn and Dr. Andrew—the ROC doctors

who had expressed concerns prior to 2013 about Dr. Mankin’s work.

Defendants filed for summary judgment on the remaining claims. On 16

March 2022, after a hearing on the matter, the trial court entered its order granting

Defendants’ motion for summary judgment. Plaintiffs appealed.

II. Analysis

Our standard of review from a summary judgment order is de novo. Builders

Mut. Ins. Co. v. N. Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006).

Summary judgment should be upheld “when the record shows that there is no

genuine issue as to any material fact and that the party is entitled to judgment as a

matter of law.” Raymond v. Raymond, 257 N.C. App. 700, 708, 811 S.E.2d 168, 173–

74 (2018). When considering a motion for summary judgment, the evidence must be

viewed in the light most favorable to the nonmoving party. Johnson v. Trs. of

Durham Tech. Cmty. Coll., 139 N.C. App. 676, 683, 535 S.E.2d 357, 362 (2000).

Our General Statutes provide a four-year statute of repose for medical

malpractice claims. N.C. Gen. Stat. § 1-15(c). Our Supreme Court has expressed that

our General Assembly “did not intend for actions premised on medical malpractice to

be instituted more than four years after the last allegedly negligent act[.]” Udzinski

v. Lovin, 358 N.C. 534, 537, 597 S.E.2d 703, 706 (2004).

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Our General Statutes define a medical malpractice action as a “civil action for

damages for personal injury or death arising out of the furnishing or failure to furnish

professional services in the performance of medical, dental, or other health care by a

health care provider.” N.C. Gen. Stat. § 90-21.11(2)(a) (2023).

We have carefully reviewed the briefs of the parties and the evidence in the

record and conclude that the trial court erred in granting summary judgment on

Plaintiff’s claim against ROC for negligently retaining Dr. Mankin as an employee of

the Clinic to perform pediatric surgeries. We further conclude, however, that the trial

court did not err in granting summary judgment on all other claims challenged by

Plaintiffs in this appeal.

We first address the claims against ROC for negligent retention of Dr. Mankin.

Our Supreme Court has recently reiterated that our State recognizes “that an

employer’s duty to exercise reasonable care of its employment and retention of

employees could extend to [customers and clients].” Keith v. Health-Pro Home Care

Servs. Inc., 381 N.C. 442, 451, 873 S.E.2d 567, 575 (2022). Our Court has held that

negligent retention claims can extend to a hospital or group for negligent acts of their

employees and doctors. See Willoughby v. Wilkins, 65 N.C. App. 626, 637, 310 S.E.2d

90, 97 (1983) (recognizing claim of negligent hiring against hospital for the hiring of

a physician); Dunkley v. Shoemate, 121 N.C. App. 360, 465 S.E.2d 319 (1996).

(negligent hiring claim against hospital for acts of a resident in psychiatry).

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It could be argued that ROC’s actions in retaining Dr. Mankin are, in fact,

claims for medical malpractice, and thus barred by the statute of repose. However,

the plain language of Article 1B, Chapter 90 of our General Statutes, which concerns

medical malpractice actions, does not suggest that the alleged actions of ROC for

negligently retaining Dr. Mankin fall within the definition of medical malpractice.

Specifically, under the Article, only a “health care provider” can be liable for “medical

malpractice.” N.C. Gen. Stat. § 90-21.11 (2023). Section 90-21.11(a) defines who is

considered a “health care provider.” The only non-human entities incorporated

within the definition of “health care provider” are “[a] hospital, a [duly licensed]

nursing home and [a duly licensed] adult care home.”

Section 90-21.11(2) defines a “medical malpractice action” as either a claim for

damages (1) “for personal injury or death arising out of the furnishing or failure to

furnish professional services in the performance of medical . . . care by a health care

provider” or (2) “against a hospital, a [duly licensed] nursing home, or [a duly

licensed] adult care home [alleging] a breach of administrative or corporate duties,

including [ ] allegations of . . . negligent monitoring and supervision . . . .”

It may be that the actions alleged against ROC for negligent retention are a

breach of its administrative duties and, therefore, fall within a claim for medical

malpractice. However, the plain language of Section 90-21.11(2) does not include a

medical practice, such as ROC, within its gamut. There is no evidence that ROC is a

hospital, a nursing home, or adult care home. Accordingly, we must conclude that

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Plaintiffs’ claim against ROC for negligent retention is not barred by the statute of

repose, as the claim is not one of malpractice under the relevant statute.

We, however, conclude that the trial court did not otherwise err in granting

summary judgment on the other claims challenged by Plaintiffs in this appeal. For

instance, regarding the claims against Drs. Barker and Mikels for alleged torts they

committed in their treatment of Brittany in 2016, approximately four years after Dr.

Mankin last operated on Brittany, Plaintiffs do not point to any evidence that

Brittany was further damaged by their care. Plaintiffs do not allege that either Dr.

Barker or Dr. Mikels injured Brittany in any way during their treatment of her, but

instead allege that all her injuries sprung from the surgeries performed by Dr.

Mankin. Plaintiffs essentially allege that Drs. Barker and Mikels likely came to learn

in 2016 that Dr. Mankin botched his 2012 surgery but failed to disclose this

information to Brittany. Brittany only learned of Dr. Mankin’s allegedly poor

treatment of her when she saw a doctor at another practice shortly after Dr. Barker

and Dr. Mikels saw her.

To the extent that the claims alleged against Drs. Barker and Mikels are

medical malpractice claims, they are not barred by the statute of repose, as these

doctors saw Brittany in 2016, well within four years of the commencement of this

action. However, assuming Plaintiffs met their burden of producing evidence at the

summary judgment hearing that Drs. Barker and Mikels’ actions were tortious,

Plaintiffs point to no evidence showing how Brittany was damaged by Drs. Barker

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and Mikels’ conduct. She was already allegedly injured by Dr. Mankin’s surgeries

when she presented herself to Drs. Barker and Mikels in 2016. And Plaintiffs do not

point to any evidence showing how her injuries worsened or how she was otherwise

damaged by Drs. Barker and Mikels. Accordingly, we conclude that the trial court

did not err by granting summary judgment for all claims against all Defendants for

any actions of Drs. Barker and Mikels in their treatment of Brittany in 2016.

We next address the claims against ROC, Drs. Vaughn and Andrew, and Mr.

Klein under various theories of fraud, breach of fiduciary duty, and for

negligent/intentional infliction of emotional distress. Plaintiffs cite evidence in the

record that, when viewed in the light most favorable to Plaintiffs, tend to show that

these individuals became aware that Dr. Mankin was performing unnecessary

surgeries on juvenile patients before he performed the surgeries on Brittany.

Our Supreme Court recognizes that a plaintiff may have a claim for failing to

disclose information to a patient (e.g., a fraud concealment) apart from a malpractice

claim. See, e.g., Watts v. Cumberland Cnty. Hosp. Sys., Inc., 317 N.C. 110, 116–17,

343 S.E.2d 879, 884 (1986). We have reviewed the evidence cited by Plaintiffs and

conclude that such evidence, even viewed in the light most favorable to Plaintiffs,

fails to allege a cause of action. For instance, Watts and similar cases concern

concealment of facts concerning the treatment of the plaintiff. However, here,

Plaintiffs point to no evidence that these Defendants were aware of Dr. Mankin’s

treatment of Brittany, specifically. There is no allegation these Defendants knew of

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Brittany’s condition when she presented herself to Dr. Mankin, or of the course of

treatment that Dr. Mankin recommended including the two surgical procedures, or

of facts that would show the surgeries were inappropriate or poorly performed. We

conclude that the trial court properly granted summary judgment to these

Defendants on these claims.

In conclusion, we have carefully considered the evidence in the record and the

arguments of the parties in this appeal and conclude that the trial court properly

granted summary judgment on all claims challenged by Plaintiffs in this appeal,

except for the claim against ROC for negligent retention of Dr. Mankin.

AFFIRMED IN PART, REVERSED IN PART.

Judges FLOOD and STADING concur.

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