Cottle v. Mankin: Negligent Retention Claims Against Corporate Clinics as Medical Malpractice Actions Subject to North Carolina’s Statute of Repose

Cottle v. Mankin: Negligent Retention Claims Against Corporate Clinics as Medical Malpractice Actions Subject to North Carolina’s Statute of Repose

I. Introduction

The Supreme Court of North Carolina’s decision in Cottle v. Mankin, No. 173PA24 (Dec. 12, 2025), squarely confronts whether a patient can avoid the strict time limits governing medical malpractice suits by framing her claims against a corporate medical practice as “negligent retention” or “negligent supervision” rather than malpractice. The Court’s answer is unequivocal: where the corporate practice’s alleged wrongdoing arises from professional clinical judgment about whether to retain or supervise a physician, the claim is a “medical malpractice action” governed by the medical malpractice statute of repose.

The case arises from tragic and deeply troubling allegations about the orthopedic care provided to a 14-year-old patient, Brittany Cottle, by orthopedist Dr. Keith Mankin at Raleigh Orthopaedic Clinic (“ROC”). Despite mounting internal and external warnings that Dr. Mankin provided incompetent and dangerous care, ROC allegedly continued to employ him and allowed him to operate, including performing two spinal/sacroiliac surgeries on Brittany in 2010 and 2012. Brittany later discovered that she had never suffered from spinal stenosis, that the fusion procedure was never actually performed, and that fixation screws used in the sacroiliac procedure were not anchored to bone.

By the time Brittany and her parents sued, however, the four-year statute of repose for malpractice had elapsed. Plaintiffs conceded that their direct medical malpractice claims were time-barred, but argued that their negligent retention (and related corporate negligence) claims against ROC were ordinary negligence claims, not “medical malpractice actions,” and thus not subject to the malpractice repose period. The Court of Appeals accepted that argument and revived the negligent retention claim.

The Supreme Court reversed. It held that:

  • ROC is a “health care provider” under N.C.G.S. § 90‑21.11(1), because “person” includes corporate entities under N.C.G.S. § 12‑3(6), and ROC is “legally responsible for the negligence” of its physicians.
  • Plaintiffs’ negligent retention claim against ROC is a “medical malpractice action” under N.C.G.S. § 90‑21.11(2)(a) because it arises from ROC’s exercise of professional clinical judgment and skill in retaining and supervising a physician.
  • As a medical malpractice action, the negligent retention claim is subject to the four-year statute of repose in N.C.G.S. § 1‑15(c) and is therefore time-barred.

The Court declined to address plaintiffs’ additional claims for fraud, constructive fraud, breach of fiduciary duty, and intentional/negligent infliction of emotional distress, holding that its earlier grant of discretionary review of those issues was improvident. Those issues remain governed by the Court of Appeals’ decision.

Doctrinally, Cottle is significant in two respects. First, it clarifies that corporate medical practices (such as physician groups and clinics) are “health care providers” for purposes of North Carolina’s medical malpractice statutes. Second, it holds that negligent retention and supervision claims against such entities—when grounded in clinical/professional judgment—are medical malpractice actions subject to the malpractice statute of repose. Plaintiffs cannot repackage malpractice-based corporate negligence as ordinary negligence to escape the four-year outer time bar.

II. Summary of the Opinion

Justice Barringer, writing for a unanimous Court, structures the opinion around two sets of claims:

  1. Negligent retention (and related negligent supervision) against ROC.
    Plaintiffs alleged ROC negligently retained and supervised Dr. Mankin despite extensive knowledge of his substandard and dangerous care. ROC argued that these claims are medical malpractice actions subject to the four-year statute of repose. Plaintiffs responded that (1) ROC is not a statutory “health care provider,” and (2) negligent retention is not a “medical malpractice action” under N.C.G.S. § 90‑21.11(2). The Court rejected both arguments, holding that ROC is a “health care provider” and that the negligent retention claim is a medical malpractice action barred by the statute of repose.
  2. Other tort claims (fraud, constructive fraud, breach of fiduciary duty, intentional and negligent infliction of emotional distress).
    These claims focused mainly on failures to disclose information about Dr. Mankin’s history of care and related conduct after the malpractice. The Court had initially granted discretionary review of the Court of Appeals’ affirmance of summary judgment on these claims. However, on further consideration, it declared that discretionary review had been improvidently allowed and declined to address these issues, leaving the Court of Appeals’ resolution in place.

On the pivotal negligent retention issue, the Court held:

  • Under N.C.G.S. § 12‑3(6), “person” includes corporations unless the context clearly indicates otherwise.
  • Section 90‑21.11(1) defines “health care provider” “[w]ithout limitation” and includes “[a]ny other person who is legally responsible for the negligence” of licensed health professionals.
  • ROC, a corporate medical practice vicariously liable for the negligence of its physicians, fits that definition and is thus a “health care provider.”
  • Plaintiffs’ negligent retention claim arises out of ROC’s furnishing of professional medical services—specifically, the exercise of clinical judgment and professional skill in hiring, retaining, and supervising a surgeon—and thus is a “medical malpractice action” under § 90‑21.11(2)(a).
  • Because the last relevant act occurred in 2012 and the action was not commenced until 2017, the claim is barred by the four-year statute of repose in N.C.G.S. § 1‑15(c).

The Supreme Court therefore:

  • Reversed the Court of Appeals insofar as it revived the negligent retention claim against ROC.
  • Left intact the Court of Appeals’ judgment on the remaining claims by declaring plaintiffs’ discretionary review improvidently allowed.

III. Factual and Procedural Background

A. Factual Background

The opinion recites a disturbing factual narrative, which is important for understanding the stakes of the legal rulings.

  1. 2010–2012: Surgeries by Dr. Mankin.
    When Brittany was 14 (2010), she sought care at ROC for back pain. Orthopedist Dr. Keith Mankin ordered X-rays and diagnosed spinal stenosis and mild scoliosis. An MRI three months later showed no spinal stenosis, only minimal disc desiccation, but despite that, he performed spinal surgery: removing part of a vertebra and fusing part of her spine. In 2012, with persistent pain, he diagnosed an unstable sacroiliac joint and performed a second surgery involving left sacroiliac fusion with screws. His operative report stated the screws were properly affixed, but imaging showed two of three screws did not contact bone.
  2. Internal and external warnings about Mankin’s competence.
    Beginning in 2011:
    • A patient’s father complained to ROC’s executive director (Karl Stein) and another orthopedist (Dr. Wallace Andrew), claiming that a fusion surgery Mankin said he performed had never been done and was never needed.
    • ROC hired pediatric orthopedist Dr. Neil Vining, who quickly observed a general understanding among ROC staff that Mankin was substandard, with pediatric cases being steered away from him to UNC and Duke. Vining became alarmed.
    • By late 2011, Vining convened a meeting with Stein, Andrew, and an insurance representative, presenting three pediatric cases in which Mankin’s care was negligent. Vining warned Mankin posed a significant risk to patients and urged corrective action. ROC allegedly took none; Mankin remained on staff.
    • In January 2013, UNC pediatric orthopedist Dr. Edmund Campion emailed ROC’s Dr. Jeffrey Kobs with a letter describing Mankin’s “pattern of incompetent, and even dangerous, care” and indicating he would share it with WakeMed’s chief medical officer. ROC surgeons, including Mankin, used WakeMed facilities for surgery.
    By March 2013, Mankin resigned from ROC.
  3. Medical Board involvement.
    After Mankin’s departure, Vining learned Mankin continued practicing in his own solo practice. Concerned about his “highly dubious” and “consistently substandard” techniques, Vining reported him to the North Carolina Medical Board, urging the Board to contact other pediatric orthopedists and consider sanctions. The Board investigated, leading to a non-disciplinary consent order in which Mankin agreed to place his license on inactive status and leave North Carolina to pursue non-medical interests. By December 12, 2015, he had ceased all practice in North Carolina.
  4. 2016: Brittany’s continued problems and discovery of the alleged malpractice.
    In 2016, Brittany’s back pain recurred. She returned to ROC, first seeing orthopedist Dr. Mark Mikles, who ultimately referred her to ROC hip specialist Dr. Joseph Barker. Brittany then sought a second opinion from Duke orthopedist Dr. William Richardson. There she learned:
    • She had never had spinal stenosis.
    • The spinal fusion Mankin supposedly performed had never actually been done.
    • The sacroiliac screws were not anchored to bone.
    A third surgery was needed to remove the non-functional screws.

B. Procedural History

  1. Initial filing and claims.
    On November 21, 2016, plaintiffs filed a Rule 9(j) extension motion, signaling their intent to commence a medical malpractice action over the 2010 and 2012 surgeries. The complaint that followed:
    • Sued Mankin directly for medical malpractice.
    • Sought to hold ROC vicariously liable for Mankin’s malpractice.
    • Brought direct corporate claims against ROC (and its research foundation) for negligent retention and negligent supervision of Mankin.
    • Asserted additional tort claims (fraud, breach of fiduciary duty, and various emotional distress claims) against Mankin, ROC, and ROC personnel.
  2. Trial court rulings (statute of repose and summary judgment).
    Defendants moved to dismiss the malpractice-related claims as barred by the four-year statute of repose in N.C.G.S. § 1‑15(c). The trial court:
    • Dismissed the medical malpractice claims and certain related claims against ROC and its employees as untimely.
    • Allowed some claims to proceed, including negligent retention and supervision against ROC.
    In February 2022, defendants sought summary judgment on the remaining claims, arguing that they, too, were effectively malpractice-based and thus barred by the same statute of repose. The trial court agreed and granted summary judgment on all remaining claims.
  3. Court of Appeals decision.
    On appeal, plaintiffs conceded their malpractice claims were barred. They challenged the summary judgment only as to negligent retention/supervision and several non-malpractice tort theories (fraud, breach of fiduciary duty, emotional distress). The Court of Appeals:
    • Affirmed the summary judgment as to most claims.
    • Reversed as to plaintiffs’ negligent retention claim against ROC, reasoning that:
      • ROC, a corporate medical practice, is not a “health care provider” as that term is defined in § 90‑21.11(1).
      • Negligent retention is therefore not a “medical malpractice action” under § 90‑21.11(2) and not subject to § 1‑15(c)’s repose period.
  4. Supreme Court review.
    ROC sought discretionary review to overturn the Court of Appeals’ revival of the negligent retention claim. Plaintiffs filed a conditional cross-petition asking the Supreme Court to review the Court of Appeals’ affirmance of summary judgment on their fraud, fiduciary duty, and emotional distress claims. The Supreme Court granted both petitions. After oral argument, it:
    • Reversed the Court of Appeals on the negligent retention issue, holding that the claim is barred as a medical malpractice action subject to the statute of repose.
    • Declared plaintiffs’ conditional cross-petition improvidently allowed and did not reach the merits of the other tort claims.

IV. Analysis

A. Precedents and Statutory Framework

1. Statutory provisions at issue

The decision turns on the interplay of three core statutory provisions:

  1. Medical malpractice statute of repose – N.C.G.S. § 1‑15(c).
    This provision sets an absolute outer time limit for malpractice actions:
    “A cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action . . . . [I]n no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action.”
    It is not a mere statute of limitations; it is a hard cutoff measured from the defendant’s last relevant act.
  2. Definition of “medical malpractice action” – N.C.G.S. § 90‑21.11(2).
    This provision defines what counts as a medical malpractice action. Two parts are especially relevant:
    • § 90‑21.11(2)(a): A civil action 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.”
    • § 90‑21.11(2)(b): A civil action against a hospital, nursing home, or licensed adult care home alleging breach of administrative or corporate duties to the patient (e.g., negligent credentialing, monitoring, supervision), when the action arises from the same facts as a § 90‑21.11(2)(a) claim.
  3. Definition of “health care provider” – N.C.G.S. § 90‑21.11(1).
    Section 90‑21.11(1) defines “health care provider” “[w]ithout limitation” to include:
    • Licensed individual professionals (§ 90‑21.11(1)(a)).
    • Hospitals, nursing homes, and adult care homes (§ 90‑21.11(1)(b)).
    • “Any other person who is legally responsible for the negligence” of the above (§ 90‑21.11(1)(c)).
    • Persons acting under their direction/supervision (§ 90‑21.11(1)(d)) and paramedics (§ 90‑21.11(1)(e)).

The critical questions in Cottle are:

  • Does a corporate medical practice like ROC qualify as a “health care provider” under § 90‑21.11(1)?
  • Is a negligent retention claim against such an entity a “medical malpractice action” under § 90‑21.11(2)?

2. General statutory construction rule – N.C.G.S. § 12‑3(6)

North Carolina’s general rules of statutory construction in § 12‑3 apply to all statutes unless inconsistent with legislative intent. Section 12‑3(6) provides:

“The word ‘person’ shall extend and be applied to bodies politic and corporate, as well as to individuals, unless the context clearly shows to the contrary.”

This default rule is the linchpin of the Court’s conclusion that ROC is a “health care provider,” because § 90‑21.11(1)(c) uses the term “any other person” who is legally responsible for the negligence of licensed providers.

3. North Carolina case law relied upon

The Court anchors its analysis in several prior decisions:

  • Sharpe v. Worland, 137 N.C. App. 82 (2000).
    The Court of Appeals in Sharpe interpreted the word “person” in another section of Chapter 90 and held that, absent contrary legislative intent, “person” is defined via § 12‑3(6) to include corporations. The court held that a hospital, as a corporate body, qualified as a “person” under that provision. The Supreme Court in Cottle cites Sharpe as persuasive authority for treating “person” in § 90‑21.11(1) the same way.
  • Estate of Baldwin v. RHA Health Services, Inc., 246 N.C. App. 58 (2016).
    The Court of Appeals concluded that the word “person” in § 90‑21.11(1)(d) extended to a corporate entity operating a residential facility for developmentally disabled persons—even though such a facility is not one of the three entities (hospital, nursing home, adult care home) expressly listed. Estate of Baldwin thus supports the view that “person” in § 90‑21.11(1) is not limited to the enumerated institutional providers.
  • Gause v. New Hanover Reg’l Med. Ctr., 251 N.C. App. 413 (2016).
    Gause addressed the line between malpractice and ordinary negligence. The Court of Appeals held that “claims alleging injury resulting from activity that required clinical judgment and intellectual skill” are medical malpractice claims. Cottle uses this standard to characterize ROC’s decisions to retain and supervise Mankin as professional, clinical decisions, thus bringing negligent retention/supervision under the malpractice umbrella.
  • King v. Bryant, 369 N.C. 451 (2017); Sharpe v. Worland, 351 N.C. 159 (1999); Shuffler v. Blue Ridge Radiology Assocs., P.A., 73 N.C. App. 232 (1985).
    These and similar cases are cited to illustrate that corporate medical practices are routinely held vicariously liable for the negligence of their physicians or health care professionals. That is, they are “legally responsible for the negligence” of licensed providers—a key phrase in § 90‑21.11(1)(c).
  • Builders Mut. Ins. Co. v. N. Main Constr., Ltd., 361 N.C. 85 (2006); Craig ex rel. Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334 (2009); Caldwell v. Deese, 288 N.C. 375 (1975); Cherry Cmty. Org. v. Sellars, 381 N.C. 239 (2022).
    These cases set out standards for summary judgment and de novo appellate review, and for statutory interpretation. They are primarily procedural and methodological authorities rather than substantive precedents on medical malpractice.

B. The Court’s Legal Reasoning

1. Step One: Is ROC a “health care provider” under § 90‑21.11(1)?

Plaintiffs argued, and the Court of Appeals had agreed, that:

  • The only non-human entities expressly listed as “health care providers” are hospitals, nursing homes, and adult care homes under § 90‑21.11(1)(b).
  • Because the legislature named those entities but did not list physician group practices, clinics, or similar corporate practices, the omission signals an intent not to treat such entities as “health care providers.”

The Supreme Court rejected this reading on textual and structural grounds.

a. The role of § 12‑3(6) and the term “person” in § 90‑21.11(1)(c)

Section 90‑21.11(1)(c) includes within the definition of “health care provider”:

“Any other person who is legally responsible for the negligence of a person” described in § 90‑21.11(1)(a), or of a hospital, nursing home, or adult care home.

Applying § 12‑3(6), the Court notes that unless the context clearly indicates otherwise, “person” includes both individuals and corporate bodies. The Court finds nothing in § 90‑21.11 suggesting that “person” should be limited to natural persons. To the contrary:

  • The definition of “health care provider” is explicitly “[w]ithout limitation,” signaling that the list is non-exhaustive and should be read broadly.
  • Subsection (1)(c) uses the phrase “any other person,” which “indicat[es] that person includes entities other than the three listed” in § 90‑21.11(1)(b).
  • Medical practices, as corporate entities, are routinely held vicariously liable for their physicians’ negligence; they are thus “legally responsible for the negligence” of persons described in § 90‑21.11(1)(a), fitting squarely within the text of (1)(c).

Accordingly, ROC—an incorporated medical practice that employs licensed physicians and is vicariously liable for their negligence—is a “person” under § 90‑21.11(1)(c) and therefore a “health care provider.”

b. Rejection of the expressio unius / negative-implication argument

The Court of Appeals had reasoned that because § 90‑21.11(1)(b) expressly names three institutional entities (hospitals, nursing homes, adult care homes), under the negative-implication canon (expressio unius est exclusio alterius), other corporate entities such as group practices are excluded.

The Supreme Court criticizes this use of the canon. Citing Scalia & Garner’s Reading Law, it notes that the negative-implication canon is inapplicable where the statutory text itself disclaims exclusivity. Here:

  • The definition of “health care provider” is prefaced with “[w]ithout limitation.”
  • That phrase effectively “excludes application of the [negative-implication] canon,” because it signals that the list is not exhaustive.

Thus, the legislature’s choice to list certain institutional providers in § 90‑21.11(1)(b) does not imply that other corporate entities are excluded. Instead, the presence of “[w]ithout limitation,” combined with the broad term “any other person” in § 90‑21.11(1)(c), supports an inclusive reading that encompasses corporate practices like ROC.

c. Consistency with prior case law

The Court further supports its interpretation by invoking:

  • Sharpe v. Worland (2000), which applied § 12‑3(6) to treat a hospital as a “person” under Chapter 90; and
  • Estate of Baldwin (2016), which held that a residential facility for the developmentally disabled (not listed in § 90‑21.11(1)) still qualified as a “person” under § 90‑21.11(1)(d).

These cases confirm the principle that:

“Words used in one place in a statute have the same meaning in every other place in the statute.”

Since “person” in § 90‑21.11(1) has previously been interpreted to include corporate entities, the Court extends that same meaning to § 90‑21.11(1)(c) here. The logical upshot is that ROC, as a corporate practice legally responsible for physicians’ negligence, is within the statutory definition of “health care provider.”

2. Step Two: Is negligent retention a “medical malpractice action”?

Having determined that ROC is a “health care provider,” the Court then asks whether plaintiffs’ negligent retention claim falls within § 90‑21.11(2)(a):

“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.”

The Court concludes that it does, based on both the factual nature of the claim and existing case law about what constitutes “professional services.”

a. Professional services and clinical judgment

The Court characterizes ROC’s alleged wrongdoing as:

  • “the negligent exercise of its clinical judgment and professional skill when the clinic continued to retain Dr. Mankin despite the numerous internal reports of his misconduct.”

This is crucial. ROC’s decisions about whether to retain, supervise, or intervene regarding Mankin’s care are framed as:

  • Professional decisions requiring evaluation of his competence, assessment of patient risks, and judgments about the provision of medical care.
  • Activities that “required clinical judgment and intellectual skill,” in the words of Gause, which defines the boundary between malpractice and ordinary negligence.

Because the negligent retention claim arises directly from such professional, clinical decision-making by a health care provider, it “arises out of the furnishing or failure to furnish professional services” within the meaning of § 90‑21.11(2)(a). The Court explicitly extends this reasoning to negligent supervision claims as well, noting in a footnote that the analysis is the same.

b. Relationship to § 90‑21.11(2)(b) (hospital corporate duty claims)

Section 90‑21.11(2)(b) expressly covers corporate negligence claims (e.g., negligent credentialing, monitoring, supervision) brought against hospitals, nursing homes, and adult care homes, when they arise from the same facts as a direct malpractice claim. Plaintiffs argued that because:

  • § 90‑21.11(2)(b) explicitly extends malpractice treatment to certain corporate duty claims only for those named institutions, and
  • ROC is not within that list,

the legislature must have intended to exclude negligent retention claims against corporate practices from the definition of “medical malpractice actions.”

The Court sidesteps that narrow reading by:

  • Focusing primarily on § 90‑21.11(2)(a), rather than (2)(b), and
  • Relying on the “arising out of” furnishing professional services language applied to all “health care providers,” including ROC.

In other words, hospitals and similar institutions are explicitly covered by (2)(b) even for some corporate duties that might otherwise be argued to be non-clinical. But for ROC, the Court does not need to rely on (2)(b); it simply holds that ROC’s negligent retention of a surgeon, in context, involves professional services under (2)(a). The presence of (2)(b) does not preclude applying (2)(a) to other providers when their corporate decisions are themselves clinical/professional in nature.

C. Application of the statute of repose

Once the Court classifies the negligent retention claim as a medical malpractice action, the effect of § 1‑15(c) is straightforward:

  • The last act of ROC “giving rise to the cause of action” occurred no later than the second surgery in 2012 (or certainly by Mankin’s resignation in 2013).
  • Plaintiffs filed their complaint in 2017—more than four years after 2012.
  • Therefore, under § 1‑15(c), the action is barred and may not be commenced.

Plaintiffs did not contest that the claim would be untimely if the statute of repose applied; their argument was entirely about classification. Once that classification is resolved against them, dismissal is mandatory.

D. Declining to reach derivative-claim arguments

Defendants urged the Court to go further and hold that a negligent retention claim must always fail when the underlying malpractice claim is invalid or barred. Many jurisdictions treat negligent hiring/retention as “derivative” in that sense. The Court, however, declines to address this broader issue, explicitly noting:

“Having resolved this matter on statutory grounds, the Court need not address this additional issue.”

Thus, the decision does not settle whether negligent retention or supervision might ever proceed where the underlying malpractice claim is nonviable for reasons other than repose (for example, differences in proof or timing). The holding is instead limited to the statutory classification and resulting applicability of the repose period.

3. Other claims: Improvident allowance of discretionary review

Plaintiffs had asked the Supreme Court to review the Court of Appeals’ affirmance of summary judgment on their claims for fraud, constructive fraud, breach of fiduciary duty, and intentional/negligent infliction of emotional distress, which centered on defendants’ alleged failure to inform Brittany of Mankin’s history and other related conduct.

After granting review and hearing argument, the Court simply concludes that the conditional petition for discretionary review was “improvidently allowed.” This procedural disposition:

  • Leaves the Court of Appeals’ ruling on those claims fully intact.
  • Signals that the Supreme Court chose not to issue a precedential ruling on the merits—often because the case is not the right vehicle, the issues are not sufficiently outcome-determinative, or the record is not well-suited to announce a broad rule.
  • Avoids either expanding or contracting the scope of what types of fraud or fiduciary-duty-based claims may fall outside the medical malpractice framework.

The Court thus cabins its substantive discussion entirely to the negligent retention/supervision question and the scope of the malpractice statute of repose.

C. Impact and Implications

1. Corporate medical practices as “health care providers”

The first major doctrinal impact of Cottle is the explicit recognition that corporate medical practices such as ROC are “health care providers” for purposes of Chapter 90’s malpractice definitions.

This matters because once an entity qualifies as a “health care provider”:

  • Claims against it that arise out of professional medical services are “medical malpractice actions” under § 90‑21.11(2).
  • Such actions are subject to:
    • The three-year malpractice statute of limitations (with any applicable discovery rules or exceptions).
    • The four-year statute of repose in § 1‑15(c), which sets an absolute outer limit from the last culpable act.
    • Special procedural requirements such as Rule 9(j) expert-certification prerequisites for filing.

Plaintiffs can no longer plausibly argue that corporate practices are outside the statutory definition in order to avoid these constraints. This closes a conceptual loophole suggested by the Court of Appeals’ earlier reading.

2. Classification of negligent retention and supervision as malpractice

Substantively, Cottle reinforces a broad view of what constitutes a “medical malpractice action.” It confirms that:

  • Negligent retention and negligent supervision claims against a corporate medical provider will be treated as malpractice when they arise from clinical or professional judgment regarding a provider’s competence and the safety of patient care.
  • Plaintiffs cannot evade the malpractice statutes of limitation and repose simply by labelling such claims as “negligent retention,” “negligent supervision,” or “corporate negligence.”

Future plaintiffs will need to:

  • File these corporate-negligence claims within the malpractice timeframes; and
  • Comply with malpractice-specific procedural requirements (e.g., Rule 9(j)).

Conversely, defendants will have a stronger basis to move for dismissal or summary judgment on the ground that seemingly “ordinary negligence” corporate claims are, in substance, malpractice claims subject to strict repose rules.

3. The line between malpractice and ordinary negligence

The decision sharpens the “professional services” test:

  • Where the alleged negligence involves “clinical judgment and intellectual skill” about patient care (e.g., deciding whether a surgeon is fit to continue operating), the claim is malpractice.
  • Where negligence involves purely administrative, non-clinical acts (e.g., slipping hazards in a hospital parking lot; purely financial mismanagement) that do not implicate professional medical judgment, such claims may still fall outside § 90‑21.11 and be governed by ordinary negligence rules.

Cottle pushes a significant category of corporate medical decisions—hiring, retention, supervision, monitoring of clinicians—into the malpractice bucket, especially when those decisions directly affect the quality of care patients receive.

4. Practical consequences for patients and providers

The practical consequences are substantial:

  • For patients and plaintiffs’ counsel:
    • Diligence and early investigation are even more critical. If a patient suspects harm from substandard care, delays can easily push potential claims past the four-year repose period—not just for direct malpractice against the provider, but also for corporate negligent retention and supervision claims.
    • Strategies that try to recast malpractice as non-medical negligence to escape repose are less likely to succeed when the defendant is a medical practice or similar entity.
  • For corporate medical practices and insurers:
    • Cottle strengthens repose-based defenses and provides more certainty about long-tail liability exposure for corporate negligence claims tied to provider competence.
    • Liability risk is now more clearly aligned with the malpractice timeframe, allowing more predictable reserving and coverage planning.
  • For the General Assembly:
    • The Court underscores that it is simply implementing the policy choices codified in § 1‑15(c) and § 90‑21.11; if outcomes like those in Cottle are deemed too harsh—especially in cases involving minors and late discovery—the remedy lies in legislative amendment, not judicial rebalancing.

5. Remaining open questions

While Cottle resolves the classification issue, it intentionally leaves several questions open:

  • Derivative nature of negligent retention.
    The Court does not decide whether negligent retention/supervision is always derivative of the underlying malpractice claim such that, if the malpractice claim fails on the merits or is otherwise barred, the retention claim necessarily fails. That issue remains for another day.
  • Scope of non-malpractice torts against providers.
    By declaring review of the fraud, constructive fraud, fiduciary duty, and emotional distress claims improvidently allowed, the Court does not clarify when such claims are independent of malpractice (e.g., separate misrepresentations after treatment) versus when they are merely malpractice claims in disguise. The Court of Appeals’ approach in this case continues to govern at that level, but no new Supreme Court precedent is created.
  • Boundary of “professional services” for non-physician entities.
    The reasoning in Cottle will likely be applied to other health-related entities (rehabilitation facilities, urgent care centers, telemedicine entities, etc.) when they are “legally responsible for the negligence” of licensed physicians or nurses. Future cases will have to decide, context by context, which of their corporate actions constitute “professional services” versus purely administrative activity.

V. Complex Concepts Simplified

1. Statute of limitations vs. statute of repose

  • Statute of limitations:
    • Sets a time limit to file suit measured from when a claim accrues (often when the injury is discovered or reasonably should have been discovered).
    • Can sometimes be extended (tolled) for minors, fraud, or other reasons.
  • Statute of repose (like § 1‑15(c)):
    • Sets an absolute outer time boundary measured from the defendant’s last wrongful act, regardless of when the injury is discovered.
    • Is generally not tolled and operates as a complete bar to suit once the repose period expires.
    • In North Carolina malpractice, the repose period is four years from the last act of the defendant that gave rise to the claim.

In Cottle, even though Brittany allegedly discovered the malpractice in 2016, the last relevant act by Mankin/ROC occurred by 2012. Because suit was filed in 2017, the four-year repose period had already run, barring the claim.

2. “Health care provider”

A “health care provider” under § 90‑21.11(1) is not limited to doctors and hospitals. It includes:

  • Individual professionals (physicians, nurses, dentists, etc.).
  • Institutions (hospitals, licensed nursing homes, adult care homes).
  • “Any other person” (including corporations) that is:
    • Legally responsible for the negligence of those professionals or institutions; or
    • Acting under their direction or supervision.

Cottle confirms that corporate medical practices fall into this category because they are legally responsible for their clinicians’ negligence.

3. “Medical malpractice action”

A “medical malpractice action” is:

  • A lawsuit seeking money for personal injury or death
  • That arises out of:
    • The furnishing, or failure to furnish, professional medical/dental/health services to a patient by a health care provider.
    • Or, in the case of hospitals and similar institutions, a breach of administrative or corporate duties (such as negligent credentialing or supervision) that relate to patient care.

In Cottle, negligent retention of a surgeon by a corporate clinic is considered part of the “furnishing” of professional medical services, because it is a clinical-level decision about who may provide care to patients.

4. Negligent retention and negligent supervision

  • Negligent retention: A claim that an employer kept an employee on staff when it knew or should have known the employee was unfit and posed a foreseeable risk of harm to others.
  • Negligent supervision: A claim that an employer failed to reasonably monitor or oversee an employee’s performance despite red flags, leading to harm to others.

In a medical context, these claims often involve allegations that a hospital or clinic continued to employ or failed to control a clinician whom they knew to be incompetent or dangerous. Cottle treats those claims as malpractice when they involve clinical/professional judgment about patient care.

5. Expressio unius and “without limitation”

  • Expressio unius est exclusio alterius: A Latin canon of interpretation meaning “the expression of one thing implies the exclusion of others.” If a statute lists specific items, courts sometimes infer that unlisted items are excluded.
  • “Without limitation” clauses: When a statute says a definition is given “without limitation,” it signals that the list is illustrative, not exhaustive. This often defeats the expressio unius inference.

In § 90‑21.11(1), the phrase “[w]ithout limitation” tells courts that the enumeration of certain health care providers (like hospitals) is not intended to exclude others (like corporate medical practices), especially where the statute also uses broad terms like “any other person.”

VI. Conclusion: Significance of Cottle v. Mankin

Cottle v. Mankin is a textbook example of textualist statutory interpretation applied to a deeply sympathetic set of facts. The Supreme Court acknowledges the “deeply troubling” nature of the allegations against ROC and Dr. Mankin yet emphasizes that “our concerns must yield to what our statutes instruct.” With that approach, the Court:

  • Clarifies that corporate medical practices—like hospitals—are “health care providers” under North Carolina’s medical malpractice statute.
  • Holds that negligent retention and supervision claims against such entities, when rooted in clinical and professional judgments about provider competence and patient safety, are “medical malpractice actions.”
  • Applies the four-year statute of repose to bar such claims when filed more than four years after the last culpable act, even when the injury is discovered later.

For practitioners, the case sends an unmistakable message: in North Carolina, attempts to recharacterize malpractice-based corporate negligence as ordinary negligence to circumvent the statute of repose are unlikely to succeed when the decisions at issue are part of the professional provision of health care. For policymakers, the case underscores that if greater flexibility is desired in truly egregious or delayed-discovery cases—particularly involving minors—any reform must come from legislative amendment of § 1‑15(c) or § 90‑21.11, not judicial re-interpretation.

Doctrinally, Cottle will stand as a leading authority on:

  • The breadth of the term “health care provider” in Chapter 90;
  • The classification of corporate negligent retention and supervision claims as medical malpractice; and
  • The rigorous enforcement of the medical malpractice statute of repose in North Carolina.

In a legal landscape where the lines between medical and non-medical negligence can be blurred, Cottle draws a clear boundary: when corporate decisions are part of the professional, clinical delivery of health care, they are malpractice—and subject to all the protections and constraints that status entails.

Case Details

Year: 2025
Court: Supreme Court of North Carolina

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