244 N.C. App. 546
N.C. Ct. App.2016Background
- Decedent Antonio Bellamy underwent skin‑graft surgery on 30 Dec 2011; the complaint alleges anesthetic/airway monitoring failures and a prolonged hypoxic event leading to death on 1 Jan 2012.
- Administrator filed an unverified medical‑malpractice complaint on 23 Dec 2013 — one week before the statute of limitations expired — naming Dr. Arora and nurse Amy Hueske; Arora was later voluntarily dismissed.
- The complaint included boilerplate Rule 9(j) language: it asserted the medical care was reviewed by a “Board Certified” person and also that it "has been reviewed by person(s) who are reasonably expected to qualify as expert witnesses."
- Defendant moved to dismiss under Rules 9(j) and 12(b)(6). The trial court denied leave to amend under Rule 15(a) and dismissed without prejudice for failure to satisfy Rule 9(j).
- Administrator appealed, arguing the complaint satisfied Rule 9(j) (or should have been allowed to amend) and raising alternative arguments about post‑filing correction (including a Rule 60 theory not presented below).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the complaint satisfied Rule 9(j)'s expert‑review requirement at filing | Complaint’s combined statements (about a Board‑certified reviewer and persons reasonably expected to qualify) are sufficient; Rule 9(j) need not be hyper‑technical | Complaint fails because it does not specifically state that the medical records and care were reviewed by a person reasonably expected to qualify as an expert under Rule 702 | Court: Dismissal affirmed — complaint did not adequately allege that the medical records and care were reviewed by a person reasonably expected to qualify as an expert at time of filing. |
| Whether plaintiff should be allowed to amend the complaint under Rule 15 after dismissal for 9(j) deficiency | Plaintiff sought leave to amend to cure 9(j) defect | Defendants opposed; court relied on Thigpen/Brown reasoning that 9(j) expert review must precede filing and amendment cannot be used to cure post‑filing expert review | Court: Denial of leave to amend affirmed — permitting amendment would defeat 9(j)’s legislative purpose. |
| Whether a voluntary dismissal/re‑filing or extension under Rule 9(j) could cure the defect | Sought relief by amendment rather than relying on extension or re‑filing | Defendant relied on authority that 9(j) requires review before commencement and limited statutory extension exists for expert review | Court: Not persuaded amendment was appropriate here; explained Rule 41/9(j) interplay and that an action is only ‘‘commenced’’ under 9(j) if expert review occurred before filing. |
| Whether appellate court can consider a Rule 60 (or similar) argument not presented below | Argued appellate review of amendment denial should be treated as correcting a clerical/technical error | Defendants pointed out no Rule 60 motion was made in trial court | Court: Declined to consider Rule 60 theory because no Rule 60 motion was made below; no jurisdiction to decide unraised theory. |
Key Cases Cited
- Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002) (Rule 9(j) requires expert review before filing; strict enforcement and dismissal if not complied with).
- Brown v. Kindred Nursing Ctrs. East, LLC, 364 N.C. 76, 692 S.E.2d 87 (2010) (trial court may grant a limited extension to obtain expert review, but amendment to add post‑filing certification conflicts with legislative intent behind Rule 9(j)).
- Moore v. Proper, 366 N.C. 25, 726 S.E.2d 812 (2012) (post‑amendment discussion confirming substantive requirements of Rule 9(j) remain stringent).
- Brisson v. Santoriello, 351 N.C. 589, 528 S.E.2d 568 (2000) (voluntary dismissal and re‑filing under Rule 41 interplay with statute of limitations and Rule 9(j) requirements).