264 N.C. App. 190
N.C. Ct. App.2019Background
- William Preston presented to Vidant Medical Center with chest pain on Feb 3–4, 2014; a nuclear stress test (NST) was performed and interpreted by Dr. Assadollah Movahed (nuclear cardiologist).
- Preston was discharged after hospitalist care and died of a myocardial infarction on Feb 13, 2014.
- Plaintiff (widow/estate) filed an initial malpractice suit (not naming Movahed). Two days before the two-year statute of limitations expired, she filed a second complaint adding Dr. Movahed and included a facially compliant Rule 9(j) certification that a medical expert had reviewed the care and was willing to testify.
- Pre-suit cardiologist Stuart Toporoff (a non-nuclear clinical cardiologist) signed Rule 9(j) affidavits but testified he had never interpreted nuclear images and would not testify against Movahed unless Plaintiff retained a nuclear cardiologist to support the imaging critique.
- Plaintiff retained two nuclear cardiologists only after the second complaint was filed and after the statute of limitations had expired.
- The trial court held a Rule 9(j) compliance hearing, found the pre-suit certification lacked factual support at filing (no expert both qualified and willing to testify regarding Movahed), and dismissed the complaint with prejudice; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Rule 9(j) pre-filing certification substantively complied with Rule 9(j) | Preston: Certificate was substantively compliant because Toporoff reviewed records and was willing to testify that care fell below standard | Movahed: Subsequent discovery showed no expert both qualified and willing to testify as to Movahed at the time of filing; certification therefore factually unsupported | Held: Certification was factually unsupported at filing; dismissal affirmed |
| Whether it was reasonable to expect Toporoff to qualify as an expert against a nuclear cardiologist | Preston: Toporoff could opine about treadmill/EKG components and communication failures and was capable to criticize Movahed | Movahed: Toporoff admitted he had no competence to interpret nuclear images and conditioned willingness to testify on retaining a nuclear cardiologist | Held: Trial court reasonably found Toporoff was not willing/qualified to testify against Movahed without nuclear cardiologist support |
| Whether Plaintiff satisfied Rule 9(j)’s requirement that expert review occur before filing | Preston: Expert review existed (Toporoff affidavit) prior to filing | Movahed: The relevant willingness/competence element did not exist pre-filing because supporting nuclear expert was retained later | Held: Requirement not met pre-filing; later retention cannot cure pre-filing deficiency |
| Whether the trial court's critical factual findings were supported by competent evidence | Preston: Challenges to three findings claimed insufficient support | Movahed: Points to Toporoff deposition confirming the findings | Held: Court’s challenged findings were supported by competent evidence and binding on appeal |
Key Cases Cited
- Vaughan v. Mashburn, 817 S.E.2d 370 (N.C. 2018) (Rule 9(j) is a gatekeeper against frivolous malpractice suits and requires expert review before filing)
- Moore v. Proper, 726 S.E.2d 812 (N.C. 2012) (a facially valid Rule 9(j) certificate may be dismissed if subsequent discovery shows it lacked factual support at filing)
- Estate of Wooden ex rel. Jones v. Hillcrest Convalescent Ctr., Inc., 731 S.E.2d 500 (N.C. Ct. App. 2012) (trial courts must make written findings when concluding a Rule 9(j) certification lacks factual support)
- McGuire v. Riedle, 661 S.E.2d 754 (N.C. Ct. App. 2008) (dismissal affirmed where plaintiff failed to present an expert willing to testify)
- Trapp v. Maccioli, 497 S.E.2d 708 (N.C. Ct. App. 1998) (courts should consider facts known or those that should have been known to the pleader at filing for Rule 9(j) compliance)
- Thigpen v. Ngo, 558 S.E.2d 162 (N.C. 2002) (permitting post-filing expert review would defeat Rule 9(j)’s purpose)
- Scott v. Scott, 442 S.E.2d 493 (N.C. 1994) (trial court findings supported by competent evidence are binding on appeal)