374 N.C. 177
N.C.2020Background
- William Preston presented to Vidant Medical Center with chest pain and EKG abnormalities; he underwent a nuclear stress test that provoked severe chest/arm pain and was terminated early.
- Dr. Assadollah Movahed, a board‑certified nuclear cardiologist, interpreted the nuclear stress test; his dictated report noted a perfusion defect and recommended outpatient CTA, but the written report was not in the chart before Preston’s discharge. A cardiology fellow (Dr. Joshi) entered a note recommending outpatient CTA.
- Preston was discharged, died ten days later of an acute myocardial infarction and ventricular rupture; autopsy revealed severe coronary disease.
- Plaintiff filed a wrongful‑death malpractice suit and certified under Rule 9(j) that Dr. Stuart Toporoff (a clinical cardiologist) reviewed the records and was willing to testify that the care breached the standard of care. Toporoff initially said he was unwilling to challenge nuclear imaging without a nuclear cardiologist but later, after learning Movahed’s report was not available to the hospitalist before discharge, averred he was willing to testify that Movahed breached the standard in interpreting/communicating the treadmill/EKG findings and failing to recommend a consult.
- The trial court granted Movahed’s motion to dismiss under Rule 9(j), finding Toporoff unwilling and not reasonably expected to qualify; the Court of Appeals affirmed. The North Carolina Supreme Court reversed, holding that when the evidence is viewed in the light most favorable to plaintiff, Toporoff was willing to testify at the time the Second Complaint was filed and plaintiff reasonably expected him to qualify under Rule 702.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff satisfied Rule 9(j) as to an expert’s willingness to testify | Preston: Toporoff’s affidavits and later testimony show he was willing to testify against Movahed at the time the Second Complaint was filed (after learning the report wasn’t available to the hospitalist). | Movahed: Toporoff repeatedly said he would not testify against a nuclear cardiologist unless plaintiff retained a nuclear cardiologist; therefore Toporoff was not willing when the complaint was filed. | Court: Viewing evidence in plaintiff’s favor, Toporoff was willing to testify at filing; trial court’s contrary findings unsupported. |
| Whether plaintiff reasonably expected Toporoff to qualify under Rule 702 | Preston: Toporoff is an experienced cardiologist who routinely reads hundreds of treadmill/EKG stress tests and reasonably could be expected to qualify to testify about the treadmill/EKG component and communication. | Movahed: As a nuclear cardiologist, Movahed required a like specialist; Toporoff lacked nuclear cardiology credentials and thus could not reasonably be expected to qualify to testify about the nuclear stress test interpretation. | Court: It was reasonable to expect Toporoff to qualify for opinions limited to treadmill/EKG interpretation and communication; Rule 9(j)’s preliminary qualification test was satisfied. |
| Proper standard for evaluating Rule 9(j) dismissal on appeal | Preston: Moore requires courts to draw all reasonable inferences in favor of the nonmoving party at the Rule 9(j) stage; ambiguities must be resolved for plaintiff. | Movahed: Trial court findings supported by competent evidence; appellate courts may defer to those factual findings. | Court: Apply Moore—view forecasted evidence in the light most favorable to plaintiff; appellate courts should not mechanically apply deference to findings that rest on disputed/ambiguous evidence. |
| Whether a non‑specialist may testify against a specialist about part of a composite procedure | Preston: An expert need not have identical subspecialty if qualified on the particular component (e.g., treadmill/EKG) at issue. | Movahed: Rule 702 requires a like specialist when defendant is a specialist; a clinical cardiologist cannot credibly criticize a nuclear cardiologist’s integrated nuclear stress test interpretation. | Court: An expert who performs the same component at issue can be reasonably expected to qualify; Rule 9(j) is not an impossible barrier requiring identical subspecialty in all circumstances. |
Key Cases Cited
- Moore v. Proper, 366 N.C. 25, 726 S.E.2d 812 (2012) (establishes Rule 9(j) framework: evaluate compliance at filing, draw inferences for plaintiff, and distinguish preliminary Rule 9(j) inquiry from ultimate Rule 702 qualification)
- Vaughan v. Mashburn, 371 N.C. 428, 817 S.E.2d 370 (2018) (describes Rule 9(j) as a legislative gatekeeper to prevent frivolous malpractice suits)
- Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002) (explains Rule 9(j)’s legislative intent to require qualified experts and stricter pleading in malpractice cases)
- Scott v. Scott, 336 N.C. 284, 442 S.E.2d 493 (1994) (general rule that trial court findings supported by competent evidence are binding, contrasted here with the Moore Rule 9(j) approach)
- Roush v. Kennon, 188 N.C. App. 570, 656 S.E.2d 603 (2008) (illustrative authority that witnesses in related specialties may sometimes testify about components of care)