251 N.C. App. 494
N.C. Ct. App.2016Background
- Plaintiff Maria Vaughan underwent a hysterectomy on May 3, 2012 and alleges surgical injury to her right ureter by Dr. Lindsay Mashburn.
- Plaintiff’s counsel had a pre-suit review by OB/GYN expert Dr. Nathan Hirsch in October 2014, and Hirsch informed counsel he would testify that care violated the standard of care.
- Plaintiff filed a medical-malpractice complaint on April 20, 2015, but the Rule 9(j) certification in the complaint omitted the statutory language that “all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry” were reviewed.
- Defendants moved to dismiss under Rule 12(b)(6); Plaintiff moved on June 30, 2015 for leave to amend the complaint to correct the Rule 9(j) certification and submitted affidavits showing Hirsch reviewed records before filing.
- The trial court (Aug. 27, 2015) granted dismissal and denied leave to amend as futile because the statute of limitations ran May 3, 2015 and the amended complaint would not relate back to the original filing date.
- Plaintiff appealed; the Court of Appeals affirmed, concluding precedent requires a timely-filed complaint to contain a proper 9(j) certification and an untimely 9(j) amendment is futile.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused discretion by denying leave to amend Rule 9(j) certification after SOL expired | Vaughan: amendment should be allowed because undisputed evidence (affidavits) shows the expert review occurred before the original complaint was filed, so amendment should relate back | Defendants: amendment is futile because the original complaint lacked the required statutory 9(j) language and the statute of limitations expired, so the amended pleading cannot relate back | Court held: no abuse of discretion; amendment would be futile because plaintiff did not file a complaint with a proper Rule 9(j) certification within the statute of limitations, so it cannot relate back; affirm dismissal |
| Whether evidence (affidavits) proving pre-filing expert review permits post-SOL amendment to cure defective 9(j) language and obtain relation back under Rule 15 | Vaughan: factual proof that review occurred before filing (Hirsch affidavit, counsel affidavit, interrogatory answers) should allow amendment and relation back | Defendants: even conceding pre-filing review, precedent requires the original complaint to contain proper 9(j) language to be timely; factual proof does not change relation-back rule | Court held: factual proof of pre-filing review does not overcome precedent (Alston, Fintchre); where original complaint lacked proper certification within SOL, post-SOL amendment is futile |
Key Cases Cited
- Moore v. Proper, 366 N.C. 25 (2012) (describing Rule 9(j) as a legislative gatekeeper to prevent frivolous malpractice suits)
- Keith v. N. Hosp. Dist., 129 N.C. App. 402 (1998) (holding complaints lacking any 9(j) certification cannot later be amended under Rule 15 to add certification)
- Thigpen v. Ngo, 355 N.C. 198 (2002) (Rule 9(j) review must occur before filing; amendment that does not allege pre-filing review fails the rule)
- Brisson v. Santoriello, 351 N.C. 589 (2000) (addressing interplay of Rule 9(j) with voluntary dismissal under Rule 41 and refiling within one year)
- Alston v. Hueske, 781 S.E.2d 305 (N.C. Ct. App. 2016) (affirming denial of leave to amend where original complaint’s 9(j) language was defective and was not properly filed before SOL)
- Fintchre v. Duke Univ., 773 S.E.2d 318 (N.C. Ct. App. 2015) (holding amendment futile where no valid 9(j) certification was filed within the statute of limitations)
- Boyd v. Rekuc, 782 S.E.2d 916 (N.C. Ct. App. 2016) (discussing Rule 41 refiling after voluntary dismissal and noting different interplay than Rule 15 amendments)