Webb v. NASH HOSPITALS, INC., 133 N.C. App. 636

HORTON, Judge.

This is an action for medical malpractice, in which plaintiff Carolyn Faye Webb (Mrs. Webb) alleges that Nash General Hospital, Southeastern Acute Care Specialists, P.A., Charles E. Williamson, M.D., and Rocky Mount OB-GYN Associates, RA. (collectively, defendants), provided substandard medical care to her in October 1994. Her husband, Phillip Edward Webb (Mr. Webb), seeks to recover for loss of consortium.

Pursuant to the provisions of Rule 9(j) of the North Carolina Rules of Civil Procedure, Mrs. Webb filed a motion prior to the expiration of the three-year statute of limitations, to extend the time within which to file her complaint. N.C. Gen. Stat. § 1A-1, Rule 9(j) (Cum. Supp. 1998). The motion was filed in Nash County Superior Court on 19 September 1997. A Nash County Resident Superior Court Judge granted the motion by order dated 12 September 1997, which order was filed on ‍​​​​​​‌‌‌‌‌​‌​​‌​​‌‌‌​​‌​​​​‌​​‌​​‌​​​‌‌​‌​‌‌​​​‍1 October 1997. As permitted by Rule 9(j), the order granted Mrs. Webb an additional 120 days within which to file her action, through and including 5 Februаry 1998. Plaintiffs then filed this complaint on 4 February 1998.

Defendants moved to dismiss the complaint pursuant to Rules 12(b)(6) and 41(b), contending that it appeared on the fаce of the complaint that the statute of limitations had expired. Rocky Mount OB-GYN Associates, P.A., also contended that the complaint did nоt state a claim for medical malpractice against it. The trial court granted all motions to dismiss, concluding that “[plaintiffs failed to serve thе motion for extension upon any defendant in compliance with Rule 5, that the order of the Court purporting to extend the statute of limitations hаs no application to those parties not served with the motion, and that [plaintiffs’ claims against [defendants are accordingly barred by the expiration of the three-year limitations period.” The trial court further concluded that the complaint did not state a valid claim upоn which relief could be granted against Rocky Mount OB-GYN Associates, P.A. Plaintiffs appealed.

The issues are: (I) Does a Rule 9(j) order extending the time to file a medical malpractice action toll the statute of limitations as to defendants who are not named in the motion requesting the extension of time, as well as all defendants who are not served with notice of the extension; (II) Does a Rule 9(j) extension obtained by Mrs. Webb to file hеr medical malpractice claim also toll the statute of limitations as to Mr. Webb’s claim for loss of consortium; and (III) Did plaintiffs state a claim for which relief could be granted against Rocky Mount OB-GYN.

We initially note that defendants also argued that the trial court was without jurisdiction when it ordered that the time for filing the complaint in accordance with Rule 9(j) be extended by 120 days because there was no motion pending for the extensiоn of time when the order was signed. This argument is unpersuasive, however, because the record clearly shows that the motion was filed and enterеd on 19 September 1997 and the order allowing the motion was filed and “entered” on 1 October 1997. Rule 58 of the North Carolina Rules of Civil Procedure statеs that “a judgment is entered when it is reduced to writing, signed by the judge, and filed with the clerk of court.” N.C. Gen. Stat. § 1A-1, Rule 58 (Cum. Supp. 1998). Therefore, the mere signature on a judgment ‍​​​​​​‌‌‌‌‌​‌​​‌​​‌‌‌​​‌​​​​‌​​‌​​‌​​​‌‌​‌​‌‌​​​‍that has not been entered is an incomplete judgment. See Worsham v. Riehbourg’s Sales and Rentals, 124 N.C. App. 782, 784, 478 S.E.2d 649, 650 (1996).

I

Defendants argue that by not naming all of the parties in the motion to extend the time for filing the complaint and not serving any of them with notice of the time extension, their due process right to notice was violated. We disagree.

Rule 9(j) states that:

Upon motiоn by the complainant prior to the expiration of the applicable statute of limitations, a resident judge . .. may allow a motion to extend the statute of limitations for a period not to exceed 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). Rule 5 provides that service is required for “[e]very order required by its terms to be served, every pleading subsequent to the original complaint unless the court otherwise orders ... [and] every written motion other than one which may be heard ex parte . . . .” N.C. Gen. Stat. § 1A-1, Rule 5 (Cum. Supp. 1998).

In Timour v. Pitt County Mem. Hosp., 131 N.C. App. 548, 508 S.E.2d 329, 330 (1998), disc. review allowed, 350 N.C. 107, — S.E.2d — (1999), this Court held that the order grаnting a Rule 9(j) time extension was not required to be served on the other party because a complaint had not been ‍​​​​​​‌‌‌‌‌​‌​​‌​​‌‌‌​​‌​​​​‌​​‌​​‌​​​‌‌​‌​‌‌​​​‍filed. Moreover, because the motion to extend the time to file the complaint may be heard ex parte, it falls within the Rule 5 exception to the service requirement. Id. Indeed, the very purpose of the Rule 9(j) extension is to allow a plaintiff additional time in order to meet the requirements of the rulе in filing a medical malpractice complaint. The requirements are intended, in part, to protect defendants from having to defend frivolous medical malpractice actions by ensuring that before a complaint for medical malpractice is filed, a competent medical professional has reviewed the conduct of the defendants and concluded that the conduct did not meet the appliсable standard of care. Although our Supreme Court has granted defendants’ petition for discretionary review in Timour, that Court has not yet ruled on the merits of the petition. Therefore, despite the serious questions raised herein, we are bound by the ruling of this Court in Timour. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36 (1989).

II

Plaintiffs argue that the trial court erred in dismissing Mr. Webb’s loss of consortium claim. We agree.

N.C. Gen. Stat. § 1-52(5) requires that a loss of consortium claim be brought within three years ‍​​​​​​‌‌‌‌‌​‌​​‌​​‌‌‌​​‌​​​​‌​​‌​​‌​​​‌‌​‌​‌‌​​​‍from the time that the cause of action accrues. N.C. Gen. Stat § 1-52(5) (Cum. Supp. 1998); Sloan v. Miller Building Corp., 128 N.C. App. 37, 40, 493 S.E.2d 460, 462 (1997). In North Carolina, “a spouse’s claim for loss of consortium must be joined with the other spouse’s claim for personаl injury.” Sloan, 128 N.C. App. at 40, 493 S.E.2d at 462. The loss of consortium cause of action is “not barred by the statute of limitations so long as the original negligence claim of the injured spоuse is not so barred.” Id. Because we have held that Mrs. Webb’s medical malpractice claim should not have been dismissed, the trial court likewise erred in dismissing the loss of consortium claim.

III

In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, the reviewing сourt determines ‍​​​​​​‌‌‌‌‌​‌​​‌​​‌‌‌​​‌​​​​‌​​‌​​‌​​​‌‌​‌​‌‌​​​‍whether the pleadings, when taken as true, are legally sufficient to satisfy the elements of a valid legal claim. Arroyo v. Scottie’s Professional Window Cleaning, 120 N.C. App. 154, 158, 461 S.E.2d 13, 16 (1995), disc. review improvidently allowed, 343 N.C. 118, 468 S.E.2d 58 (1996). In order to establish negligence, a plaintiff must allege (1) a legal duty, (2) breach of that duty, (3) injury caused by a breach of that duty, and (4) damages. Mozingo v. Pitt County Memorial Hospital, 331 N.C. 182, 187, 415 S.E.2d 341, 344 (1992).

In this case, Mrs. Webb failed to аllege in her complaint any duty or breach on the part of Neal Adkins, Jr., M.D., the physician on call for Rocky Mount OB-GYN. Indeed, the only fact allegеd in the complaint was that Charles E. Williamson, M.D. “discussed Mrs. Webb’s condition with the OB-GYN on call — Neal A. Adkins, Jr., M.D., an employee and/or agent of Defendant Rocky Mount OB-GYN Associates, P.A.” There is no allegation that a physician-patient relationship existed between Dr. Adkins and Mrs. Webb, nor are there any allegations about the subject matter of Dr. Williamson’s discussion with Dr. Adkins. Although Mrs. Webb cites Mozingo as authority that an on-call physician may be held liable if he gives negligent advice or negligently supervises another physician, there are no facts alleged in this case which would support any negligence on the part of Dr. Adkins and Rocky Mount OB-GYN. The trial court, therefore, was correct in dismissing the claims against Rocky Mount OB-GYN.

Affirmed in part, reversed and remanded in part.

Chief Judge EAGLES and Judge LEWIS concur.

Case Details

Case Name: Webb v. NASH HOSPITALS, INC.

Court Name: Court of Appeals of North Carolina

Date Published: Jun 15, 1999

Citations: 133 N.C. App. 636; 516 S.E.2d 191; 1999 N.C. App. LEXIS 603; COA98-1050

Docket Number: COA98-1050

Court Abbreviation: N.C. Ct. App.