Stevenson v. N.C. Department of Correction
714 S.E.2d 435
N.C. Ct. App.2011Background
- Inmate Roger Stevenson at Lanesboro Correctional Institute sought medical treatment for a skin condition on May 5, 2008.
- PA Stanford allegedly denied a skin cream prescription after a cursory exam, allegedly not reviewing medical records.
- Stevenson filed a Tort Claims Affidavit with the Commission on May 14, 2008.
- Defendant moved to dismiss on June 10, 2008 for, among other things, Rule 9(j) noncompliance.
- Deputy Commissioner Griffin dismissed the claim for Rule 9(j) noncompliance on June 30, 2009.
- The Full Commission dismissed without prejudice on April 8, 2010, allowing refiling with Rule 9(j) certification before a set deadline; the court later remanded to fix a clerical error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 9(j) applies to this medical malpractice claim | Stevenson contends Rule 9(j) certification was required and not satisfied. | Defendant argues failure to comply with Rule 9(j) warrants dismissal. | Rule 9(j) required; dismissal appropriate absent compliance. |
| Whether res ipsa loquitur can salvage noncompliant Rule 9(j) claim | Res ipsa loquitur could permit a viable claim despite Rule 9(j) issues. | Res ipsa loquitur does not cure lack of Rule 9(j) certification absent other requirements. | Res ipsa loquitur did not apply; claim failed Rule 9(j) requirements. |
| Whether the Commission properly dismissed for Rule 9(j) noncompliance | Any technical defects could be cured by amendment or timely refiling. | Failure to comply mandates dismissal under Ford v. McCain. | Dismissal proper under Rule 9(j). |
| Whether clerical error requires remand | The order contained a clerical error that could change outcome. | Clerical error did not affect the outcome. | Remand to correct clerical error; outcome remains affirmance with correction. |
Key Cases Cited
- Pate v. N.C. DOT, 176 N.C.App. 530 (2006) (appeal standard for Tort Claims Act—errors of law; Rule 9(j) context)
- Ford v. McCain, 192 N.C.App. 667 (2008) (Rule 9(j) dismissal when no certification)
- Diehl v. Koffer, 140 N.C.App. 375 (2000) (res ipsa loquitur requires jury-inferable negligence)
- Marolf Constr. v. Allen's Paving Co., 154 N.C.App. 723 (2002) (clerical errors defined; correction allowed)
- Doe 1 v. Swannanoa Valley Youth Dev. Ctr., 163 N.C.App. 136 (2004) (Rules 4/10B; applicability of NC Rules in tort claims)