## Facts

- Heather D. Acosta was both a patient and an employee of Psychiatric Associates of Eastern Carolina in North Carolina.
- David R. Faber, II, M.D., an Alabama resident, owned the practice.
- The office manager allegedly harbored severe personal animus toward Acosta.
- Acosta alleged Dr. Faber negligently allowed the office manager to use his medical-record access credentials.
- Using those credentials, the office manager allegedly accessed Acosta’s confidential psychiatric and other medical records multiple times over several months.
- The office manager allegedly disclosed information from Acosta’s records to third parties without authorization.
- Acosta alleged resulting severe emotional distress, humiliation, and mental anguish.
- Acosta sued multiple defendants; as to Dr. Faber, she asserted negligent infliction of emotional distress (NIED) based on his alleged failure to secure record access.
- The trial court dismissed the claims against Dr. Faber with prejudice under Rules 12(b)(2) (personal jurisdiction) and 12(b)(6) (failure to state a claim), and Acosta appealed.

## Issues

1. Whether the interlocutory dismissal of Dr. Faber affected a substantial right permitting immediate appeal.
2. Whether North Carolina courts could exercise personal jurisdiction over Dr. Faber, a nonresident owner of a North Carolina medical practice.
3. Whether the complaint stated a claim for NIED against Dr. Faber under Rule 12(b)(6).
4. Whether the claim sounded in medical malpractice requiring Rule 9(j) certification, or ordinary negligence based on administrative conduct.
5. Whether the plaintiff had to plead specific confidentiality statutes or regulations (including HIPAA) to state the applicable duty and standard of care.

## Decision

- The court held the appeal was immediately reviewable because dismissal created a risk of inconsistent verdicts and multiple trials on the same factual issues.
- The court held North Carolina had personal jurisdiction over Dr. Faber based on his ownership and operation of a medical practice in the state and the case’s connection to that in-state activity.
- The court reversed the Rule 12(b)(6) dismissal, holding the complaint sufficiently alleged negligence, foreseeability, causation, and severe emotional distress to state an NIED claim.
- The court held Rule 9(j) did not apply because the alleged negligence concerned administrative record-access practices rather than clinical judgment or treatment.
- The court held the plaintiff was not required at the pleading stage to identify the exact confidentiality rule or regulation; it was enough to allege facts providing notice of the duty and the claimed breach.
- The court reversed and remanded for further proceedings as to Dr. Faber.

## Legal Principles

- An interlocutory order is immediately appealable when it affects a substantial right, including the right to avoid multiple trials and inconsistent verdicts on the same factual questions.
- A nonresident physician-owner may be subject to personal jurisdiction where he purposefully conducts business in the forum state through ownership and operation of an in-state medical practice and the claim arises from that operation.
- To plead NIED, a plaintiff must allege negligent conduct, reasonable foreseeability of severe emotional distress, and actual causation of severe emotional distress; detailed proof is not required at the notice-pleading stage.
- Claims focused on administrative practices related to access and security of patient records may constitute ordinary negligence rather than medical malpractice, making Rule 9(j) certification unnecessary.
- Confidentiality standards, including HIPAA-based duties, may inform the standard of care in a state-law negligence claim, even though HIPAA itself does not create a private cause of action; specific regulatory citations are not required in the complaint.

## Conclusion

The court allowed immediate review, found personal jurisdiction over the out-of-state physician-owner, and reinstated the NIED claim because the complaint plausibly alleged negligent administrative handling of medical-record access leading to foreseeable severe emotional distress, without triggering Rule 9(j) medical-malpractice pleading requirements.


Acosta v. Byrum, 180 N.C. App. 562, 638 S.E.2d 246 (N.C. Ct. App. 2006)