Bauberger v. N.C. Department of Correction
I.C. NO. TA-21175.
| N.C. Indus. Comm. | Mar 17, 2011Background
- Plaintiff William Bauberger, a prison inmate, alleges negligence by defendant North Carolina Department of Correction employees at Warren Correctional Institution beginning December 15, 2006.
- Defendant moved to dismiss on April 29, 2009 for failure to file a Rule 9(j) medical malpractice affidavit with the Tort Claim.
- Former Deputy Commissioner Rowell on December 3, 2009 found a signed Bauberger letter adequate to meet Rule 9(j) pleading requirements and denied dismissal, ordering an evidentiary hearing.
- Deputy Commissioner Houser conducted a May 14, 2010 hearing and sustained objections to Bauberger letters as unauthenticated or non-notarized exhibits.
- On June 9, 2010 Houser dismissed the claim with prejudice for lack of expert testimony per N.C. Gen. Stat. § 90-21.12.
- Bauberger later submitted two notarized letters from Dr. Bauberger (March 13, 2009 and June 21, 2010) asserting medical care did not meet the standard of care.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 9(j) affidavit requirement was satisfied | Bauberger argues pleading satisfied Rule 9(j). | Defendant contends no proper affidavit/no authentic testimony. | 9(j) pleading requirement satisfied. |
| Admission of Dr. Bauberger letters as evidence | Letters should be admitted as expert testimony support. | Letters lacked authentication/not notarized at relevant times. | Letters admitted as exhibits; motion to submit additional evidence granted. |
| Whether plaintiff needed expert testimony under § 90-21.12 | Plaintiff complied by alleging expert review under Rule 702. | Expert testimony required to prove standard of care. | Plaintiff complied with expert-review pleading and standard requires expert proof generally. |
| Whether dismissal for lack of expert evidence was proper | Rule 9(j) and Rule 702 evidence supported the claim. | Without proper expert proof, dismissal appropriate. | Dismissal denied; remand for further proceedings. |
Key Cases Cited
- Bolkhir v. N.C. State University, 321 N.C. 706 (1988) (negligence standards under Tort Claims Act; private-party rules apply)
- Warren v. Canal Indus., Inc., 61 N.C. App. 211 (1983) (expert testimony generally required to establish standard of care)
- Crawford v. Wayne County Bd. of Educ., 3 N.C. App. 343 (1968) (jurisdiction as initial issue in Industrial Commission proceedings)