MARIA VAUGHAN v. LINDSAY MASHBURN, M.D. and LAKESHORE WOMEN’S SPECIALISTS, PC
No. 42PA17
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 17 August 2018
795 S.E.2d 781
HUDSON, Justice.
On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 781 (2016), affirming an order entered on 27 August 2015 by Judge Stanley L. Allen in Superior Court, Iredell County. Heard in the Supreme Court on 13 December 2017.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields and Joshua D. Neighbors; Shapiro, Appleton & Duffan, P.C., by Kevin M. Duffan and Richard N. Shapiro; and Collum & Perry, PLLC, by Travis E. Collum, for plaintiff-appellant.
Parker Poe Adams & Bernstein LLP, by Chip Holmes and Bradley K. Overcash, for defendant-appellees.
Law Office of D. Hardison Wood, by D. Hardison Wood; and Knott & Boyle PLLC, by W. Ellis Boyle, for North Carolina Advocates for Justice, amicus curiae.
Roberts & Stevens, P.A., by Phillip T. Jackson and Eric P. Edgerton, for North Carolina Association of Defense Attorneys, amicus curiae.
Background
On 3 May 2012, plaintiff underwent a laparoscopic hysterectomy at Lake Norman Regional Medical Center in Mooresville, North
In October 2014, plaintiff’s original counsel contacted Nathan Hirsch, M.D., a specialist in obstetrics and gynecology who had performed approximately one hundred laparoscopic hysterectomies, and provided Dr. Hirsch all of plaintiff’s medical records pertaining to defendants’ alleged negligence. After reviewing these records, Dr. Hirsch informed plaintiff’s counsel on 31 October 2014 that in his opinion, the care and treatment rendered to plaintiff by defendants during and following the 3 May 2012 operation violated the applicable standard of care and that he was willing to testify to this effect.
Plaintiff filed a medical malpractice complaint against defendants on 20 April 2015 within the time afforded by the applicable statute of limitations, which expired on 3 May 2015.1 In accordance with the special pleading requirements of section (j) (“Medical malpractice“) of
Plaintiff avers that the medical care received by [plaintiff] complained of herein has been reviewed by persons who are reasonably expected to qualify as expert witnesses under Rule 702 of the North Carolina Rules of Evidence and who are willing to testify that the medical care provided did not comply with the applicable standard of care.
In making this assertion, however, plaintiff inadvertently used the certification language of a prior version of
(j) Medical malpractice. — Any complaint alleging medical malpractice by a health care provider as defined in G.S. 90-21.11 in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical
care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care[.]
(j) Medical malpractice. — Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:
(1) The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care[.]
On 10 June 2015, defendant Mashburn filed a motion to dismiss under
Following a hearing on 10 August 2015, the trial court entered an order on 27 August granting defendants’ motion to dismiss, denying plaintiff’s motion for leave to file an amended complaint, and dismissing plaintiff’s complaint with prejudice. In its order the trial court stated:
1. Plaintiff’s Original Complaint, filed on April 20, 2015, did not comply with Rule 9(j) of the North Carolina Rules of Civil Procedure, as amended effective October 1, 2011, in that the pleading did not specifically assert that the Plaintiff’s medical expert reviewed all medical records pertaining to the alleged negligence that are available to the Plaintiff after reasonable inquiry.
2. Plaintiff’s Motion for Leave to File an Amended Complaint, filed on June 30, 2015, is denied as being futile because the proposed amendment to Plaintiff’s Original Complaint does not relate back to the filing date of Plaintiff’s Original Complaint, and the statute of limitations ran on May 3, 2015.
Plaintiff appealed from the trial court’s order to the Court of Appeals.
At the Court of Appeals plaintiff argued that the trial court’s ruling was erroneous and that under this Court’s decision in Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002), a plaintiff may amend a defective
Plaintiff filed a petition for discretionary review, which this Court allowed on 16 March 2017.
Analysis
Plaintiff argues that she should be permitted to amend her medical malpractice complaint under
(a) Amendments. — A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 30 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within 30 days after service of the amended pleading, unless the court otherwise orders.
. . . .
(c) Relation back of amendments. — A claim asserted in an amended pleading is deemed to have been interposed at the time the claim in the original pleading was interposed, unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading.
will not be reversed on appeal absent a showing of abuse of discretion[,] . . . amendments should be freely allowed unless some material prejudice to the other party is demonstrated.” Mauney v. Morris, 316 N.C. 67, 72, 340 S.E.2d 397, 400 (1986) (first citing Henry, 310 N.C. at 82, 310 S.E.2d at 331; then citing Mangum v. Surles, 281 N.C. 91, 98-99, 187 S.E.2d 697, 702 (1972)); see also id. at 72, 340 S.E.2d at 400 (“The burden is upon the opposing party to establish that that party would be prejudiced by the amendment.” (first citing Roberts v. Reynolds Mem‘l Park, 281 N.C. 48, 58-59, 187 S.E.2d 721, 727 (1972); then citing Vernon v. Crist, 291 N.C. 646, 654, 231 S.E.2d 591, 596 (1977)))).
This “liberal amendment process” under
In addressing the applicability of
“Rule 9(j) serves as a gatekeeper, enacted by the legislature, to prevent frivolous malpractice claims by requiring expert review before filing of the action.” Moore v. Proper, 366 N.C. 25, 31, 726 S.E.2d 812, 817 (2012) (citing Thigpen, 355 N.C. at 203-04, 558 S.E.2d at 166); see also Minutes of N.C. House Select Comm. on Tort Reform, Hearing on H. 636 & H. 730, 1995 Reg. Sess. (Apr. 19, 1995) [hereinafter Hearing] (comments by Rep. Charles B. Neely, Jr.) (explaining that “[t]he bill attempts to weed out law suits which are not meritorious before they are filed” (emphasis added)). As the caption of the 1995 legislation states, see Act of June 20, 1995, ch. 309, 1995 N.C. Sess. Laws 611, 611 (“An Act to Prevent Frivolous Medical Malpractice Actions by Requiring that Expert Witnesses in Medical Malpractice Cases Have Appropriate Qualifications to Testify on the Standard of Care at Issue and to Require Expert Witness Review as a Condition of Filing a Medical Malpractice Action“), the rule seeks to accomplish its purpose in two ways:
First, the legislature mandated that an expert witness must review the conduct at issue and be willing to testify at trial that it amounts to malpractice before a lawsuit may
be filed. Second, the legislature limited the pool of appropriate experts to those who spend most of their time in the profession teaching or practicing.
Moore, 366 N.C. at 37, 726 S.E.2d at 820 (Newby, J., concurring in part and concurring in the result) (citing ch. 309, secs. 1, 2, 1995 N.C. Sess. Laws at 611-13). Thus, the rule averts frivolous actions by precluding any filing in the first place by a plaintiff who is unable to procure an expert who both meets the appropriate qualifications and, after reviewing the medical care and available records, is willing to testify that the medical care at issue fell below the standard of care.
The Court of Appeals correctly noted that this Court has not addressed, in Thigpen or in any other case, the precise issue raised here involving the interplay between
In Brisson the plaintiffs’ claims stemmed from injuries allegedly sustained during an abdominal hysterectomy performed on the female plaintiff on 27 July 1994. Id. at 591-92, 528 S.E.2d at 569. The plaintiffs filed a timely medical malpractice action on 3 June 1997 but failed to include a
subject medical care, but it was inadvertently omitted from the pleading.” Id. at 592, 528 S.E.2d at 569-70. The plaintiffs also filed a motion in the alternative to voluntarily dismiss their complaint without prejudice under
Similar to
Accordingly, within one year of their voluntary dismissal, the plaintiffs filed a new complaint on 9 October 1997 that included the
pleadings, asserting that the plaintiffs’ claims were barred by the statutes of limitations and repose. Id. at 592, 528 S.E.2d at 570. The trial court entered an order granting the defendants’ motion for judgment on the pleadings, ruling that the plaintiffs’ original 3 June 1997 complaint “d[id] not extend the statute of limitations in this case because it d[id] not comply with Rule 9(j)” and that the subsequent 9 October 1997 complaint was barred by the statute of limitations. Id. at 592, 528 S.E.2d at 570. After the Court of Appeals reversed the trial court’s ruling, this Court granted the defendants’ petition for discretionary review. Id. at 593, 528 S.E.2d at 570.
We first noted that the plaintiffs’ voluntary dismissal under
This Court has repeatedly stated that “[s]tatutes dealing with the same subject matter must be construed in pari materia and harmonized, if possible, to give effect to
each.” Board of Adjust. v. Town of Swansboro, 334 N.C. 421, 427, 432 S.E.2d 310, 313 (1993). On these facts, we must look to our Rules of Civil Procedure and construe Rule 9(j) along with Rule 41. Although Rule 9(j) clearly requires a complainant of a medical malpractice action to attach to the complaint specific verifications regarding an expert witness, the rule does not expressly preclude such complainant’s right to utilize a Rule 41(a)(1) voluntary dismissal. Had the legislature intended to prohibit plaintiffs in medical malpractice actions from taking voluntary dismissals where their complaint did not include a Rule 9(j) certification, then it could have made such intention explicit. In this case, the plain language of Rule 9(j) does not give rise to an interpretation depriving plaintiffs of the one-year extension pursuant to their Rule 41(a)(1) voluntary dismissal merely because they failed to attach a Rule 9(j) certification to the original complaint. “[T]he absence of any express intent and the strained interpretation necessary to reach the result urged upon us by [defendants] indicate that such was not [the legislature’s] intent.” Sheffield v. Consolidated Foods Corp., 302 N.C. 403, 425, 276 S.E.2d 422, 436 (1981).
Id. at 595, 528 S.E.2d at 571. Accordingly, we determined that the plaintiffs’ voluntary dismissal of their original 3 June 1997 complaint—though it lacked a proper
merely harmonizes the provisions of Rules 9(j) and 41(a). A frivolous malpractice claim with no expert witness pursuant to Rule 9(j) still meets the ultimate fate of dismissal. Likewise, a meritorious complaint will not be summarily dismissed without benefit of Rule 41(a)(1), simply because of an error by plaintiffs’ attorney in failing
to attach the required certificate to the complaint pursuant to Rule 9(j).
Id. at 598, 528 S.E.2d at 573. Regarding the additional issue of whether “an amended complaint which fails to allege that review of the medical care in a medical malpractice action took place before the filing of the original complaint satisf[ies] the requirements of Rule 9(j),” we concluded that discretionary
In Thigpen the alleged medical malpractice occurred in June 1996. 355 N.C. at 199, 558 S.E.2d at 163.
On the final day of the extended deadline, the plaintiff filed her medical malpractice complaint but failed to include the
certification that the ‘medical care has been reviewed’ by someone who would qualify as an expert.” Id. at 200, 558 S.E.2d at 164. The defendants then filed motions to dismiss on the basis that the plaintiff’s amended complaint was not filed before expiration of the extended statute of limitations. Id. at 200, 558 S.E.2d at 164. The trial court granted the defendants’ motions and dismissed with prejudice the plaintiff’s complaint, finding that “Plaintiff’s original Complaint did not contain a certification that the care rendered by Defendants had been reviewed by an expert witness reasonably expected to testify that the care rendered to Plaintiff did not comply with the applicable standard of care as required by Rule 9(j).” Id. at 200, 558 S.E.2d at 164. After a split decision of the Court of Appeals, in which the majority reversed the trial court, the defendants appealed to this Court. Id. at 198-99, 200, 558 S.E.2d at 163-64.
As an initial matter, we determined that “the interplay between Rule 9(j) and Rule 15” was “neither dispositive nor relevant to th[e] case” and further, that Brisson was factually distinguishable and therefore inapposite. Id. at 200-01, 558 S.E.2d at 164. We then noted that
[t]he General Assembly added subsection (j) of Rule 9 in 1995 pursuant to chapter 309 of House Bill 730, entitled, “An Act to Prevent Frivolous Medical Malpractice Actions by Requiring that Expert Witnesses in Medical Malpractice Cases Have Appropriate Qualifications to Testify on the Standard of Care at Issue and to Require Expert Witness Review as a Condition of Filing a Medical Malpractice Action.” Act of June 20, 1995, ch. 309, 1995 N.C. Sess. Laws 611. The legislature specifically drafted
Rule 9(j) to govern the initiation of medical malpractice actions and to require physician review as a condition for filing the action. The legislature’s intent was to provide a more specialized and stringent procedure for plaintiffs in medical malpractice claims through Rule 9(j)’s requirement of expert certification prior to the filing of a complaint. Accordingly, permitting amendment of a complaint to add the expert certification where the expert review occurred after the suit was filed would conflict directly with the clear intent of the legislature.
Id. at 203-04, 558 S.E.2d at 166. Because the plaintiff’s original complaint failed to comply with
Next, we addressed an issue for which we granted discretionary review (and for which we concluded discretionary review had been improvidently allowed in Brisson)—whether “an amended complaint which fails to allege that review of the medical care in a medical malpractice action took place before the filing of the original complaint satisfies the requirements of Rule 9(j).” Id. at 204, 558 S.E.2d at 166. Consistent with our prior discussion of legislative intent, we held that it does not. Id. at 204, 558 S.E.2d at 166. Specifically, we determined that
[t]o survive dismissal, the pleading must “specifically assert[ ] that the medical care
has been reviewed.” N.C.G.S. § 1A-1, Rule 9(j), para. 1(1), (2) (emphasis added). Significantly, the rule refers to this mandate twice (in subsections (1) and (2)), and in both instances uses the past tense. Id. In light of the plain language of the rule, the title of the act, and the legislative intent previously discussed, it appears review must occur before filing to withstand dismissal. Here, in her amended complaint, plaintiff simply alleged that “[p]laintiff’s medical care has
been reviewed by a person who is reasonably expected to qualify as an expert witness.” (Emphasis added.) There is no evidence in the record that plaintiff alleged the review occurred before the filing of the original complaint. Specifically, there was no affirmative affidavit or date showing that the review took place before the statute of limitations expired. Allowing a plaintiff to file a medical malpractice complaint and to then wait until after the filing to have the allegations reviewed by an expert would pervert the purpose of Rule 9(j).
Id. at 204, 558 S.E.2d at 166-67. Thus, Thigpen emphasizes that because expert review is a condition of initiating a medical malpractice action in the first place, the review must occur before the filing of an original complaint.2 Because the plaintiff’s proposed amended complaint still failed to comply with
having that amendment relate back to the date of the original complaint.” Id. at 204-05, 558 S.E.2d at 167.
That latter issue is similar in significant respect to the one raised here, though the proposed amended complaint in Thigpen was attempted as “a matter of course,” whereas plaintiff here sought to amend “by leave of court,” which, as previously noted, “shall be freely given when justice so requires.”
Our conclusion in Brisson that “the plain language of Rule 9(j) does not give rise to an interpretation depriving plaintiffs of the one-year extension pursuant to their Rule 41(a)(1) voluntary dismissal merely because they failed to attach a Rule 9(j) certification to the original complaint,” 351 N.C. at 595, 528 S.E.2d at 571, has similar application here. Just as
complainant’s right to utilize a Rule 41(a)(1) voluntary dismissal,” id. at 595, 528 S.E.2d at 571,
Accordingly, we conclude that a plaintiff in a medical malpractice action may file an amended complaint under
We again emphasize that in a medical malpractice action the expert review required by
Here plaintiff alleged in her 20 April 2015 complaint that the expert review of the “medical care” had occurred as required by
Court of Appeals to the contrary is reversed, and this case is remanded for further proceedings.
As a final matter, this Court allowed discretionary review of the issue of whether “the trial court abuse[d] its discretion in denying [plaintiff’s] motion to amend when [plaintiff] filed a motion to amend within 120 days of the expiration of the statute of limitations, and verified by affidavits that her proposed Rule 9(j) certification factors all had occurred inside the statute of limitations.” As to this issue, we hold that discretionary review was improvidently allowed.
REVERSED AND REMANDED; DISCRETIONARY REVIEW IMPROVIDENTLY ALLOWED IN PART.