246 N.C. App. 227
N.C. Ct. App.2016Background
- Plaintiff alleged medical malpractice for failure to provide up-to-date vaccinations; last treatment by defendants occurred in March/April 2011.
- Plaintiff filed a timely malpractice complaint on March 14, 2014, but it lacked the certification required by Rule 9(j).
- Plaintiff voluntarily dismissed that first action on June 16, 2014 under Rule 41(a)(1) before any Rule 9(j) dismissal with prejudice.
- On July 14, 2014 (within one year of the Rule 41 dismissal and within 120 days after the statute of limitations), Plaintiff refiled with a compliant Rule 9(j) certification asserting the expert review occurred before the original filing.
- Trial court dismissed the refiled action as time-barred; Plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a timely-filed malpractice complaint that lacked Rule 9(j) certification can be voluntarily dismissed under Rule 41 and the claim refiled after the statute of limitations expires without being time-barred | Boyd: Yes—Brisson allows a timely but 9(j)-defective complaint to be voluntarily dismissed and refiled within one year, provided the new complaint states the expert review occurred before the original filing | Defendants: The refiled action is time-barred because the original complaint lacked the required 9(j) certification and the second filing was after the statute of limitations | Court: Reversed trial court. Under Brisson (as clarified by Thigpen and Brown), a plaintiff may voluntarily dismiss a timely 9(j)-defective complaint and refile within one year under Rule 41 if the new complaint avers the 9(j) expert review occurred before the original filing; dismissal was error |
| Scope of Rule 9(j)’s 120-day extension (can it be used to obtain an expert after limitations run or to amend a previously filed defective complaint?) | Boyd: Not directly at issue here; plaintiff did not seek a 120-day extension | Defendants: Argued Rule 9(j)’s extension may affect timeliness analysis | Held: Court did not decide the broader question here; noted Brown limits use of the 120-day extension to filing the complaint (majority) and that case law is unsettled on some permutations |
Key Cases Cited
- Brisson v. Santoriello, 351 N.C. 589 (2000) (holding a timely-filed malpractice complaint defective for lack of Rule 9(j) certification may be voluntarily dismissed and refiled within one year where the refiled complaint avers the expert review occurred before the original filing)
- Thigpen v. Ngo, 355 N.C. 198 (2002) (amendment adding Rule 9(j) certification does not relate back unless the certification states the expert review occurred before the original filing)
- Bass v. Durham Cnty., 358 N.C. 144 (2004) (per curiam) (adopting the reasoning that Brisson must be read in light of Thigpen; emphasizing limits on relation-back when expert review post-dates original filing)
- Brown v. Kindred Nursing, 364 N.C. 76 (2010) (reaffirming Brisson but clarifying that a refiled complaint will relate back only if filed within one year of dismissal and it alleges the expert review occurred prior to the original filing; majority also circumscribed use of the 120-day extension)
- Brockweg v. Anderson, 333 N.C. 486 (1993) (explaining Rule 41’s one-year refiling window when an action was timely filed before dismissal)