STATE OF NORTH CAROLINA | SUPERIOR COURT DIVISION BUNCOMBE COUNTY FILE NO. 25-CV-1232 2P R19 = Donna L. Smith, BUNGOKEE CO., C.S.C pial ae es i }CA Healthcare, Inc. and HCA Healthcare, Inc., and MH MH Mission Hospital, LLLP’s Motion to Dismiss, Defenses, and Mission Hospital, LLLP, collectively Answer d/b/a CarePartners PACE; and Suzanne J. Lowery, Defendants. HCA Healthcare, Ine. and MH Mission Hospital, LLLP (the “Answering Defendants") hereby move to dismiss the Complaint under Rules 9) and 12(), assert defenses to the Complaint, and answer its allegations as follows, Motion to Dismiss 1. Lack of Personal Jurisdiction over HCA HCA Healthcare, Inc. moves to dismiss for lack of personal jurisdiction. HCA Healthcare, Inc. is a Delaware corporation with its principal place of business in Tennessee. It does not do business in North Carolina, and it played no role in any of the events alleged in the Complaint. 2. Failure to Comply with Rule 9() ‘The Answering Defendants move to dismiss under Rules 9() and 12(b)(6) on the grounds that the Complaint doos not comply with Rule 9(). Taking the allegations of the Complaint as true, this claim “aris[es] out of the furnishing or failure to furnish professional services in the performance of ... health care by a health care provider.” N.C.G.S. § 90-21,12(2). But the Complaint does not certify that the required pre-suit review has occurred or that an expert is willing to testify that the Answering Defendants deviated from the applicable standard of practice. If this Court concludes that the Complaint does not facially violate Rule 94), the Answering Defendants reserve the right to renew this Motion when discovery demonstrates that this action is in substance a medical malpractice action. Gause v. New Hanover Regional Medical Center, 251 N.C. App. 413, 422 (2016) as sini2087 3. Failure to State a Claim ‘The Answering Defendants move to dismiss under Rule 12(0)(6) on the grounds that the Plaintif's Complaint fails to state a claim upon which relief may be granted, Defenses 1. Lack of Personal Jurisdiction HCA Healtheare, Inc, asserts lack of personal jurisdiction as a defense to this action. 2. Statutes of Limitations and Repose ‘The Answering Defendants assert as a defense to this action all applicable statutes of limitations and repose, including but not limited to N.C.GS. §§ 1 15, 1-52, and 1-58, 3. Lack of Provider-Patient Relationship ‘The Answering Defendants assert that there was not a health-care-provider- to-patient relationship between the Answering Defendants and Plaintiff, and on that basis the Answering Defendants did not owe a duty of care to Plaintiff 4. Compliance with Standard of Care In the alternative to Defense 3, the Answering Defendants assert asa complete bar to the Plaintiff's Complaint the provisions of N.C.G.S. § 90-21.12 and assert, that all health care allegedly provided by the Answering Defendants was in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action, On that basis the Plaintiff is not entitled to recover from the Defendants. 5. Lack of Proximate Cause Ifit is determined that the Answering Defendants were in any way negligent, which is specifically denied, then the Answering Defendants assert that the negligence alleged by the Plaintiff was not a proximate cause of the injuries alleged in Plaintiff's Complaint. To the extent supported by the evidence, the Answering Defendants assert the defenses of superseding negligence and failure to mitigate.30f7 6. Intervening, Superseding, or Contributory Negligence If it is determined that the Answering Defendants were in any way negligent, which is specifically denied, then the Answering Defendants assert that the negligence alleged by the Plaintiff was not a proximate cause of the injuries alleged in Plaintiff's Complaint. Instead, the negligence of others, including the Plaintiff if supported by the evidence, is pled as a defense and complete and absolute bar to recovery. 7. Failure to State a Claim; Violation of Rule 9() ‘The Answering Defendants assert asa defense to this action that the Plaintiff's Complaint fails to state a claim and violates Rule 94) of the North Carolina Rules of Civil Procedure. In the alternative, the Answering Defendants assert as a defense to this action that the Plaintiff's Complaint fails to set forth with sufficient specificity information necessary to determine whether the Complaint complies with Rule 9G) of the North Carolina Rules of Civil Procedure, Reservation of Right to Serve Additional Defenses ‘The Answering Dafondants reserva the right ta raise any additional defenses that may become apparent through discovery and at trial. Answer Any allegation not specifically admitted is DENIED. 1. The allegations contained in this paragraph of the Complaint are not directed at the Answering Defendants. To the extent a response is required from the Answering Defendants, the allegations are DENIED. ADMITTED. ADMITTED. Di DENIED. Itis specifically DENIED that HCA Healthcare, Ine. does business in North Carolina, that any Answering Defendant does business under the name “CarePartners PACE” or anything similar, and that any Answering Defendant owned or operated the PACE program alleged in the Complaint. INIED.. 12, 13, 4 4of7 ‘The allegations contained in this paragraph of the Complaint are not directed at the Answering Defendants. To the extent a response is required from the Answering Defendants, the allegations are DENIED. ‘The allegations contained in this paragraph of the Complaint are legal arguments and conclusions. The allegations contained in this, paragraph of the Complaint are not directed at the Answering Defendants. To the extent a response is required from the Answering Defendants, the allegations are DENIED. It is specifically DENIED that Defendant Lowery was an agent or employee of any Answering Defendant at any time alleged in the Complaint. ADMITTED without prejudice to HCA Healthcare, Inc's personal: jurisdiction defense. It is DENIED that this Court has personal jurisdiction over HCA Healtheare, Ine. ‘The responses above are incorporated herein by reference. ‘The medical records of the Plaintiff are in writing and speak for themselves. Except as specifically admitted herein the allegations in this paragraph are DENIED. It is specifically DENIED that Defendant Lowery was an agent or employee of the Answering Defendants, that the Answering Defendants operated a PACE program, and that Plaintiff was a client of a PACE program operated by the Answering Defendants, ‘The medical records of the Plaintiff are in writing and speak for themselves. Except as specifically admitted herein the allegations in this paragraph are DENIED. ‘The medical records of the Plaintiff are in writing and speak for themselves. Except as specifically admitted herein the allegations in this paragraph are DENIED. ‘The medical records of the Plaintiff are in writing and speak for themselves. Except as specifically admitted herein the allegations in this paragraph are DENIED.1. 18. 19, 20. 21. 22, 28 24, Sof ‘The medical records of the Plaintiff are in writing and speak for themselves. Except as specifically admitted herein the allegations in this paragraph are DENIED. ‘The medical records of the Plaintiff are in writing and speak for themselves. Except as specifically admitted herein the allegations in this paragraph are DENIED. ‘The medical records of the Plaintiff are in writing and speak for themselves. Except as specifically admitted herein the allegations in this paragraph are DENIED. ‘The medical records of the Plaintiff are in writing and speak for themselves. Except as specifically admitted herein the allegations in this paragraph are DENIED. ‘The medical records of the Plaintiff are in writing and speak for themselves. Except as specifically admitted herein the allegations in this paragraph are DENIED. DENIED. ‘The responses above are incorporated herein by reference. ‘The allegations contained in this paragraph of the Complaint are not directed at the Answering Defendants. To the extent a response is required from the Answering Defendants, the allegations are DENIED. ‘The allegations contained in this paragraph of the Complaint are not directed at the Answering Defendants. To the extent a response is required from the Answering Defendants, the allegations are DENIED. ‘The allegations contained in this paragraph of the Complaint are not directed at the Answering Defendants. To the extent a response is required from the Answering Defendants, the allegations are DENIED. ‘The allegations contained in this paragraph of the Complaint are not directed at the Answering Defendants. To the extent a response is required from the Answering Defendants, the allegations are DENIED.27. 28, 29. 30. 31 32, GofT ‘The allegations contained in this paragraph of the Complaint are not directed at the Answering Defendants. To the extent a response is required from the Answering Defendants, the allegations are DENIED. ‘The allegations contained in this paragraph of the Complaint are not directed at the Answering Defendants. To the extent a response is required from the Answering Defendants, the allegations are DENIED. ‘The responses above are incorporated herein by reference. DENIED. Itis specifically DENIED that HCA Healtheare, Inc. doos business in North Carolina, that any Answering Defendant docs business under the name “CarePartners PACE” or anything similar, and that any Answering Defendant owned or operated the PACE program alleged in the Complaint. DENIED. DENIED. DENIED. Prayer for Relief ‘The Answering Defendants request the following relief: ‘a, Dismissal of the Complaint. b. Ajuzy trial on any claims not dismissed. ©. Costs and fees taxed to Plaintiff and awarded to the Answering Defendants. 4. Any other appropriate relief,‘This the 2-4 day of June, 2028. Tof7 ROBERTS & STEVENS, PA Phillip Jackson (#21134) pjackson@roberts-stevens.com David Hawisher (#55502) dhawisher@roberts-stevens.com PO Box 7647 Asheville, NC 28802 (828) 252-6600 Counsel for DefendantsCertificate of Service Thereby certify that I served the foregoing document on all parties by USPS mail to the address(es) listed below. LAW OFFICES OF JAMES ScorT FARRIN Walter McBrayer Wood, wwood@farrin.com 555 S$ Mangum Street, Suite 800 Durham, NC 2701 ‘This the 2% day of June, 2023. ROBERTS & STEVENS, PA David Hawisher