Thigpen v. Ngo

• Decision Date: 01 February 2002
• Docket Number: No. 292A01.,292A01.
• Citation: 558 S.E.2d 162
• Parties: Kendra J. THIGPEN v. Corazon NGO, M.D., Marshall B. Frink, M.D., National Emergency Services, Inc., Emergency Physicians Association, Inc., CP/National, Inc. a/k/a Community Physicians/National, Inc., and Onslow County Hospital Authority.
• Court: North Carolina Supreme Court

558 S.E.2d 162

Kendra J. THIGPEN v. Corazon NGO, M.D., Marshall B. Frink, M.D., National Emergency Services, Inc., Emergency Physicians Association, Inc., CP/National, Inc. a/k/a Community Physicians/National, Inc., and Onslow County Hospital Authority.

No. 292A01.

Supreme Court of North Carolina.

February 1, 2002.

Jimmy F. Gaylor, Jacksonville, for plaintiff-appellee.

Harris, Creech, Ward and Blackerby, P.A., by C. David Creech, New Bern and W. Gregory Merritt, for defendant-appellant Corazon Ngo, M.D.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP, by John D. Madden, Raleigh and Deanna Davis Anderson, for defendant-appellant Onslow County Hospital Authority.

WAINWRIGHT, Justice.

This case arises from an order of the trial court dismissing plaintiff's complaint alleging medical malpractice because of plaintiff's failure to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure and dismissing, pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, plaintiff's amendment to the complaint because it is barred by the applicable statute of limitations, N.C.G.S. § 1-15(c) (1999).

Kendra Thigpen (plaintiff) alleges defendants Dr. Corazon Ngo (Ngo) and Onslow County Hospital Authority (OCHA) committed medical malpractice in June 1996. On 8 June 1999, before the three-year statute of limitations was to expire, plaintiff filed a motion to extend the statute of limitations 120 days to file a medical malpractice complaint against defendants. In her motion, plaintiff stated she "need[ed] additional time to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure" and "move[d] to extend the statute of limitations for a period not to exceed 120 days." (Emphasis added.) The motion was signed by plaintiff's attorney. Pursuant to Rule 9(j), the trial court granted plaintiff's motion. In the order extending the statute of limitations, the trial court determined that "good cause exists for granting [plaintiff's motion and that] the ends of justice will be served by an extension." The order specifically extended the statute of limitations through 6 October 1999.

On 6 October 1999, the final day of the extended deadline, plaintiff filed a medical malpractice complaint. The complaint did not contain the certification required by Rule 9(j). See N.C.G.S. § 1A-1, Rule 9(j) (1999). Namely, the complaint did not specify that the medical care had been reviewed by an expert prior to filing. On 12 October 1999, six days after the statute of limitations expired, plaintiff filed an amended complaint including a certification that the "medical care has been reviewed" by someone who would qualify as an expert.

Defendants Ngo and OCHA filed motions to dismiss on 4 and 10 November 1999, respectively, because plaintiff's amended complaint was not filed prior to the court-extended statute of limitations. On 17 November 1999, the trial court granted both defendants' motions to dismiss pursuant to Rules 9(j) and 12(b)(6). The trial court dismissed plaintiff's complaint with prejudice, 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)."

The Court of Appeals reversed the trial court and reinstated plaintiff's cause of action. Thigpen v. Ngo, 143 N.C.App. 209, 219, 545 S.E.2d 477, 483 (2001). The Court of Appeals held "plaintiff was entitled to amend her initial complaint to include the necessary Rule 9(j) certification." Id. We disagree.

At the outset, we note the Court of Appeals discussed the interplay between Rule 9(j) and Rule 15 of the North Carolina Rules of Civil Procedure. Id. at 211-19, 545 S.E.2d at 479-83. We find the relationship between these two rules to be neither dispositive nor relevant to this case. The trial court dismissed plaintiff's complaint with prejudice because it did not comply with Rule 9(j) and was therefore filed outside the statute of limitations. The trial court did not base its ruling on the interaction between Rules 9(j) and 15, and we find it unnecessary to address that relationship here.

The Court of Appeals also relied on this Court's decision in Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 528 S.E.2d 568 (2000), to assist its analysis of the interaction between Rules 9(j) and 15. Thigpen, 143 N.C.App. at 213, 545 S.E.2d at 480. In Brisson, we held the plaintiffs in a medical malpractice case who failed to include the 9(j) expert certification could take a voluntary dismissal pursuant to Rule 41(a)(1) of the North Carolina Rules of Civil Procedure to effectively extend the statute of limitations. Brisson, 351 N.C. at 597, 528 S.E.2d at 573. We find the facts in Brisson distinguishable from those in the present case. Specifically, in Brisson, this Court noted the trial judge "reserved ruling on defendants' motion to dismiss," and plaintiffs subsequently took a voluntary dismissal. Id. at 592, 528 S.E.2d at 570. Additionally, the plaintiffs in Brisson did not request the 120 day extension provided by Rule 9(j). Brisson, 351 N.C. 589, 528 S.E.2d 568. In Brisson, we stated, "Had the trial court involuntarily dismissed plaintiffs' complaint with prejudice pursuant to defendants' motion before plaintiffs had taken the voluntary dismissal, then plaintiffs' claims set forth in the second complaint would be barred by the statute of limitations." Id. at 595, 528 S.E.2d at 572. Any reliance by the Court of Appeals on our decision in Brisson was thus flawed.

Defendants first argue the trial court's dismissal of plaintiff's complaint was mandatory under Rule 9(j). We agree. The North Carolina Rules of Civil Procedure address pleadings in medical malpractice suits. Rule 9(j) mandates:

(j) Medical malpractice.—Any complaint alleging medical malpractice by a health care provider ... 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;

(2) The pleading specifically asserts that the medical care has been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint....

N.C.G.S. § 1A-1, Rule 9(j), para. 1(1), (2) (emphasis added).

Further, Rule 9(j) allows a plaintiff to extend the filing time to comply with the expert certification requirement:

Upon motion 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.

Id., para. 2 (emphasis added).

"When the language of a statute is clear and unambiguous, it must be given effect and its clear meaning may not be evaded by an administrative body or a court under the guise of construction." State ex rel. Util. Comm'n v. Edmisten, 291 N.C. 451, 465, 232 S.E.2d 184, 192 (1977). Rule 9(j) clearly provides that "[a]ny complaint alleging medical malpractice ... shall be dismissed" if it does not comply with the certification mandate. N.C.G.S. § 1A-1, Rule 9(j), para. 1 (emphasis added). Contrary to the holding of the Court of Appeals, we find the inclusion of "shall be dismissed" in Rule 9(j) to be more than simply "a choice of grammatical construction." Thigpen, 143 N.C.App. at 215, 545 S.E.2d at 481. While other subsections of Rule 9 contain requirements for pleading special matters, no other subsection contains the mandatory language "shall be dismissed." This indicates that medical malpractice complaints have a distinct requirement of expert certification with which plaintiffs must comply. Such complaints will receive strict consideration by the trial judge. Failure to include the certification necessarily leads to dismissal.

Rule 9(j) grants a trial judge the discretion to permit a 120 day extension of the statute of limitations "in order to comply with this Rule." N.C.G.S. § 1A-1, Rule 9(j), para. 2 (emphasis added). The extension of the statute of limitations is not automatic. The trial judge may allow a motion to extend the statute of limitations only "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." Id.

Additionally, the plain language of Rule 9(j) requires dismissal but does not specify whether the dismissal shall be with or without prejudice. "The trial court's authority to order an involuntary dismissal without prejudice is ... in the broad discretion of the trial court...." Whedon v. Whedon, 313 N.C. 200, 213, 328 S.E.2d 437, 445 (1985). When acting pursuant to Rule 9(j), trial judges, with their unique perspective, have the discretion to dismiss without prejudice if they see fit.

While our Rules of Civil Procedure contain many rules addressing pleadings generally, Rule 9(j) specifically addresses extensions of time to file a medical malpractice complaint where the complaint lacks expert certification. The title of Rule 9, "Pleading special matters," plainly signals the statute's tailoring to address distinct situations set out in the statute. We have stated:

"Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute

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