This is а wrongful death action alleging medical malpractice. Andrea Wooden Jones, executrix of Phyllis Reynolds Wooden’s estate, (‘‘Plaintiff’) filed this action during a 120-day extension of the applicable statute of limitations for filing a medical malpractice action in North Carolina. Rule 9(j) of the North Carolina Rules of Civil Procedure establishes a heightened pleading requirement for medical malpraсtice actions and affords a plaintiff the opportunity to extend the statute of limitations to provide additional time to comply with the Rule. Plaintiff appeals from the trial court’s orders dismissing the case with prejudice, denying Plaintiff’s motions for findings of fact and conclusions of law, and granting both the defendants’ motions to amend their answers to add a limitations defense. We affirm in part, vacate in part, and remаnd to the trial court for further proceedings consistent with this opinion.
This result is dictated by our Supreme Court’s recent opinion in Moore v. Proper,_N.C._,
I. Factual & Procedural Background
In May 2008, Phyllis Reynolds Woodеn was diagnosed with thoracic myelopathy, a disc herniation with spinal cord compression. Ms. Wooden elected to undergo surgery to correct this problem, and a physician from Defendant Duke University Health System, Inc. (“Duke”) performed the surgery on 27 June 2008. On 30 June 2008, Ms. Wooden was released for home recovery, but was readmitted to Duke ten days after her surgery with an elevated white blood cell count, a sign of a post-operative infection. Ms. Wooden then underwent a second surgery to reopen, irrigate, and debride the wound from the previous surgery. Ms. Wooden was prescribed a six-week course of antibiotics and rehabilitative physical therapy and was subsequently transferred to and placed in the care of Defendant Hillcrest Convalescent Center, Inc. (“Hillcrest”). It was anticipated that the staff at Hillcrest would be able to closely monitor Ms. Wooden for signs of further infection.
Ms. Wooden complained of nausea and diarrhea soon after her arrival at Hillcrest. As these symptoms persisted,. Ms. Wooden developed additional symptoms indicative of dehydration. For example, her skin became swollen and fragile, with multiple areas of dark pigmentation on her arms, and her legs swelled with fluid, a сondition known as edema. Ms. Wooden’s strength waned, and she had difficulty completing her physical therapy sessions. Aside from her physical therapy sessions, Ms. Wooden spent most of her time in bed, ultimately resulting in a back ulcer. Ms. Wooden left Hillcrest on 3 August 2008 when her daughter placed an emergency call to Duke because Ms. Wooden was having difficulty breathing. Ms. Wooden was transported to Duke’s emergency deрartment, where she was admitted and diagnosed with a pulmonary embolism, a condition known to result from dehydration.
Ms. Wooden’s health continued to decline. One day after being admitted at Duke, an ultrasound revealed that she had developed gallstones. Six days later, the staff noted that Ms. Wooden’s urine was orange, a sign of jaundice and dehydration. Ms. Wooden had difficulty eating, but she nevertheless gained forty pounds аs a result of the edema. She grew increasingly weak and began suffering from hearing loss. On 26 August 2008, Duke’s wound care team determined that Ms. Wooden was too malnourished to undergo additional surgery to treat her infected wound. As of 31 August 2008, Ms. Wooden had suffered a massive pulmonary embolism, acute renal failure, anasarca (generalized edema), a surgical wound infection, and physical deconditioning. By 11 September 2008, the surgical hardware that had been placed in Ms. Wooden’s back was visible (due to her emaciation), and she was noticeably jaundiced. Ms. Wooden was transferred to hospice care on 16 September 2008. On 27 September 2008, she received morphine to relieve her pain and fell into a comatose state. Ms. Wooden passed away on the morning of 30 September 2008.
Plaintiff’s original counsel was retained to represent the estate in the middle of August 2010. On 17 September 2010, Plaintiff moved for a 120-day extension of the statute of limitations to file a medical malpractice action pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure. Absent this extension, the statute of limitations on Plaintiff’s claim would have run on 30 September 2010, two years after Ms. Wooden’s death. See N.C. Gen. Stat. § 1-53(4) (2011). In support of her motion for an extеnsion, Plaintiff’s counsel represented that the additional time would permit her to gather all relevant medical records; to locate experts willing to testify to Defendants’ alleged medical negligence; and to provide such experts with adequate time to complete their reviews of the medical records. In sum, Plaintiff asserted that the extension would allow Plaintiff time to comply with the requirements of Rule 9(j) when bringing her complaint. Judge James E. Hardin, Jr. granted Plaintiff’s extension by order entered on 17 September 2010, effectively extending the statute of limitations on Plaintiff’s claim through 28 January 2011.
Defendants, noticing that Dr. Eason had rendered an opinion prior to Plaintiff’s request for an extension of the statute of limitations, filed motions to dismiss and to amend their answers to raise the applicable statute of limitations as a defense to Plaintiff’s claims and filed motions to dismiss on this new basis. In addition, Duke also asserted that Plaintiff’s counsel could not have reasonably expected Dr. Eason, a nursing expert, to qualify as an expert witness to render an opinion on the professional standards of care regarding physicians.
On 11 July 2011, Defendants’ motions to amend and motions to dismiss came on for hearing in Durham County Superior Court, Judge Orlando F. Hudson, Jr. presiding. The trial court granted Defendants’ motions to amend and motions to dismiss in open court, effectively dismissing the case in its entirеty. On 27 July 2011, before the trial court had entered its judgment, Plaintiff filed a motion requesting the court to include in its order findings of fact and conclusions of law. Plaintiff included in this motion a draft motion for the court containing proposed findings of fact and conclusions of law, which the court did not adopt. On 28 July 2011, the trial court entered its order dismissing the case without making specific findings of fact or conclusions of law. An order denying Plaintiff’s motion for findings of fact and conclusions of law was filed on 24 August 2011. Plaintiff timely filed notices of appeal from the trial court’s order of dismissal and order denying Plaintiff’s motion for findings of fact and conclusions of law with this Court on 24 August 2011.
II. Jurisdiction
Jurisdiction over the 28 July 2011 order dismissing the complaint and the 24 August 2011 order denying Plaintiff’s motion for findings of facts and conclusions of law lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2011), as Plaintiff appeals from final orders of the superior cоurt as a matter of right. Jurisdiction over Plaintiffs appeal from the trial court’s 21 September 2011 order granting Defendants’ motions to amend lies in this Court pursuant to N.C. R. App. P. 21(a)(1), as this Court granted Plaintiff’s petition for writ of certiorari to review that order by order entered 5 June 2012.
III. Analysis
Rule 9Q) of the North Carolina Rules of Civil Procedure dictates the pleading requirements for bringing a medical malpractice action. “Rule 9(j) serves as а gatekeeper, enacted by the legislature, to prevent frivolous malpractice claims by requiring expert review before filing of the action.” Moore,_N.C. at_, 726 S.E.2d at_. Rule 9(j) requires that a medical malpractice complaint meet one of the following three conditions at the time it is filed: (1) the claim has been reviewed by an expert reasonably expected to qualify under Rule 702 of the Rules of Evidenсe; (2) the claim has been reviewed by an expert that the plaintiff will
(b) In a medical malpractice action[,] ... a person shall not give expert testimony on the appropriate standard of health care . . . unless the person is a licensed health care provider in this State or another state and meets the following criteria:
(2) During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:
a. The active clinical practice of the same health profession in which the party against whom or оn whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or
b. The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
N.C. Gen. Stat. § 8C-1, Rule 702(b) (2011). Rule 9(j)’s requirements are strictly enforced, and a court must dismiss a complaint if it fails to meet the requirements. Thigpen v. Ngo,
“To lessen the additional burden of this special procedure, the legislature permitted trial courts to extend the statute of limitations” on medical malpractice claims. Brown v. Kindred Nursing Ctrs. E., L.L.C.,
Upon motion by the complainant prior to the expiration of the applicable statute of limitations, a resident judge of the superior court for a judicial district in which venue for the cause of action is appropriate under G.S. 1-82 or, if no resident judge for that judicial district is physically present in that judicial district, otherwise available, or able or willing to consider the motion, then any presiding judge of the superior court for that judicial district may allow a motion to extend the statute of limitations for a period not to exceеd 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension.
N.C. Gen. Stat. § 1A-1, Rule 9(j). “The extension of the statute of limitations is not automatic” but instead is left to the discretion of a superior court judge. Thigpen,
“[A] plaintiff’s compliance with Rule 9(j) requirements clearly presents a question of law to be decided by a court, not a jury.” Phillips v. A Triangle Women’s Health Clinic, Inc.,
Plaintiff argues the trial court erred in dismissing its complaint. Defendants offer two arguments on appeal in an effort to justify the dismissal, both of which assert Plaintiff’s failure to comply with Rule 9(j). Because the trial court did not specify its basis for dismissing Plaintiff’s complaint in its 28 July 2011 order, we cannot evaluate the basis on which the court ruled; however, we can briefly address the arguments tendered by Defendants in the event that they are presented to the trial court on rehearing.
Defendants first contend Plaintiff’s complaint was properly dismissed because it presented claims against physicians and other non-nursing healthcare professionals, for which Plaintiff failed to offer a Rule 9(j) expert witness. The parties do not dispute that Dr. Eason was qualified as аn expert witness to testify concerning the standard of care applicable to nursing-related claims; rather, the parties dispute only whether the complaint presented claims against physicians and other non-nursing healthcare professionals who fall outside the purview of Dr. Eason’s expertise. The trial court neglected to enter findings of fact and conclusions of law with respect to this issuе, however; and, in the absence of such findings and conclusions, we conclude that this alleged failure to comply with Rule 9(j), i.e., the inadequacy of Dr. Eason’s testimony, could not properly have served as a basis for the trial court’s decision to dismiss Plaintiff’s complaint. Furthermore, as discussed below, we conclude that even if Plaintiff’s complaint presented claims against non-nursing healthcare professionals, this fаct alone would not necessarily justify the trial court’s dismissal of the entire complaint.
The question whether a medical malpractice complaint partially in compliance with Rule 9(j) should be dismissed in its entirety is one of first impression in North Carolina, and we therefore consider Rule 90) in pari materi with other Rules of Civil Procedure in an effort to harmonize Rule 9(j) with those Rules. Brisson v. Kathy A. Santoriello, M.D., P.A.,
We now turn to Defendants’ second contention in support of the trial court’s order dismissing Plaintiff’s complaint. Defendants assert that Plaintiff requested an extension of the statute of limitations for an improper purpose and, consequently, the extension was voided such that Plaintiff filed its complaint after thе (original) statute of limitations had expired. Specifically, Defendants insist that an extension was unnecessary in that Plaintiffs sole expert, Dr. Eason, was capable of satisfying Rule 9(j)’s requirements at the time Plaintiff requested the extension. In making this contention, Defendants rely on a footnote in a decision from this Court, which stated: “Although not raised as an issue by either party, we note this Court holds that Rule 9(j)’s ‘willingness to testify’ requirement is met whеn a medical expert opines during a telephone conversation that the applicable standard of care was breached.” Phillips,
Finally, we address Plaintiff’s contention that the trial court erred in granting Defendants’ motions to amend. A motion to amend made more than thirty days after a pleading has been served must be consented to by the opposing party or be permitted by the trial court. N.C. Gen. Stat. § 1A-1, Rule 15(a) (2011). A trial court’s decision to allow a motion to amend “will not be reversed on appeal absent a showing of abuse of discretion.” Mauney v. Morris,
IV. Conclusion
For the foregoing reasons, we affirm the trial court’s 21 September 2011 order granting Defendants’ motions to amend, and we vacate and remand the trial court’s 28 July 2011 order for further proceedings consistent with this opinion. We leave to the trial court’s discretion whether to allow the parties to present any additional evidence.
Affirmed in part; Vacated in part and remanded.
Notes
. Rule 9(j) affords a medical malpractice defendant ten interrogatory questions in addition to the general discovery interrogatory limit in order to verify the plaintiffs 9(j) certification. See N.C. Gen. Stat. § 1A-1, Rule 9(j) (2011).
. Rule 9(j) was amended subsequent to Plaintiff filing her complaint. See An Act to Reform the Laws Relating to Money Judgment Appeal Bonds, Bifurcation of Trials in Civil Cases, and Medical Liability, 2011 N.C. Sess. Laws 400. Effective 1 October 2011, both 9())(1) and 9(j)(2) require an expert to review not just the medical care but also “all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry.” Id. We will refer to the version of Rule 9(j) applicable at the time Plaintiff’s complaint was filed.