Vaughan v. Mashburn

• Decision Date: 30 December 2016
• Docket Number: No. COA15-1230,COA15-1230
• Citation: 251 N.C.App. 494,795 S.E.2d 781
• Parties: Maria VAUGHAN, Plaintiff, v. Lindsay MASHBURN, M.D., and Lakeshore Women's Specialists, PC, Defendants.
• Court: North Carolina Court of Appeals

251 N.C.App. 494

795 S.E.2d 781

Maria VAUGHAN, Plaintiff,

v.Lindsay MASHBURN, M.D., and Lakeshore Women's Specialists, PC, Defendants.

No. COA15-1230

Court of Appeals of North Carolina.

Filed: December 30, 2016

Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields, Raleigh, and Joshua D. Neighbors ; Shapiro, Appleton & Duffan, P.C., by Kevin M. Duffan ; and Collum & Perry, PLLC, Mooresville, by Travis E. Collum, for Plaintiff.

Parker Poe Adams & Bernstein, LLP, by Chip Holmes, Charlotte, and John D. Branson, for Defendants.

STEPHENS, Judge.

This appeal presents the issue of whether a trial court abused its discretion in denying Plaintiff's motion to amend a timely-filed complaint alleging medical malpractice in order to clarify a defective Rule 9(j) certification where (1) the motion to amend is made after the statute of limitations has expired, but (2) the evidence is undisputed that the actual Rule 9(j) review took place before the complaint was filed. Because Plaintiff's amended complaint would not relate back to the filing date of the original complaint, making the amendment futile, we are constrained to affirm the trial court's denial of Plaintiff's motion to amend.

Factual and Procedural Background

On 3 May 2012, Plaintiff Maria Vaughan underwent a hysterectomy

performed by Defendant Lindsay Mashburn, M.D., a physician practicing obstetrics and gynecology as an employee of Defendant Lakeshore Women's Specialists, PC. Vaughan alleges that, during the procedure, Mashburn inappropriately inflicted a surgical wound to Vaughan's right uterer. In preparation for filing a medical malpractice claim against Defendants, in mid-October 2014, Vaughan's trial counsel contacted Nathan Hirsch, M.D., a specialist in obstetrics and gynecology who had performed more than one hundred hysterectomies. Counsel sent Hirsch all medical records related to Defendants’ alleged negligence for Hirsch's review as required by Rule 9(j) of the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat. § 1A–1, Rule 9(j)(1) (2015) (requiring that a medical malpractice "pleading specifically assert[ ] 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") (emphasis added). On 31 October 2014, Hirsch informed Vaughan's counsel that he had formed the opinion that the care and treatment provided to Vaughan by Defendants was a violation of the applicable standard of care and that he would testify to that opinion. Thus, the pre-suit review in Vaughan's case complied in all respects with the requirements of Rule 9(j).

However, the medical malpractice complaint Vaughan filed on 20 April 2015 stated "the Plaintiff avers that the medical care received by Maria Vaugh[a]n complained of herein has been reviewed ...." (Emphasis added). This certification language comes from a prior version of Rule 9(j) :¹

The medical care in this action has been reviewed by persons reasonably expected to qualify as expert witnesses pursuant to Rule 702 of the North Carolina Rules of Evidence and are willing to testify that the medical care in this case did not comply with the applicable standard of care.

N.C. Gen. Stat. § 1A–1, Rule 9(j)(1) (2009) (emphasis added). As Vaughan concedes, her certification omitted the required assertion that "all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry" were reviewed by the medical expert.

On 10 June 2015, Mashburn filed a motion to dismiss pursuant to Rule of Civil Procedure 12(b)(6), asserting that the complaint failed to state a claim upon which relief can be granted. On 12 June 2015, Defendants filed an answer, incorporating Mashburn's motion to dismiss by reference. On 30 June 2015, Vaughan filed a motion for leave to file an amended complaint, seeking to amend the wording of the Rule 9(j) certification to clarify that "all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry" were reviewed by the medical expert. Attached to the motion to amend were an affidavit of Vaughan's trial counsel, an affidavit of Hirsch, and Vaughan's responses to Defendants’ Rule 9(j) interrogatories, each of which indicated that Hirsch, who reasonably expected to qualify as an expert witness pursuant to Rule 702, had reviewed Vaughan's medical records before the complaint was filed.

Following a hearing on 10 August 2015, on 27 August 2015, the trial court entered an order granting Defendants’ motion to dismiss and denying Vaughan's motion to amend, stating two bases for its ruling:

1. Plaintiff's Original Complaint, filed 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 reasonably inquiry [and]

2. Plaintiff's Motion for Leave to File an Amended Complaint, filed on June 30, 2015, is ... 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.[ ]²

(Emphasis in original). From that order, Vaughan gave written notice of appeal on 5 September 2015.

Discussion

Vaughan argues that the trial court erred in concluding that her proposed amendment was futile, and that, as a result, the court abused its discretion in denying her motion to amend and erred in dismissing the action. Specifically, Vaughan contends that the trial court was acting under a misapprehension of law, to wit, that Vaughan's proposed amended complaint did not relate back to the date of the filing of the original complaint even though "uncontroverted evidence showed that an appropriate expert review occurred before the filing of the original complaint." We are constrained by recent precedent to reject this argument.

Motions to amend are governed by N.C. Gen. Stat. § 1A–1, Rule 15. Rule 15(a) provides that:

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.

Generally, Rule 15 is construed liberally to allow amendments where the opposing party will not be materially prejudiced. Our standard of review for motions to amend pleadings requires a showing that the trial court abused its discretion.

Fintchre v. Duke Univ. , ––– N.C. App. ––––, ––––, 773 S.E.2d 318, 322–23 (2015) (citations and brackets omitted). Futility of amendment is one reason that may justify a denial of a motion to amend. Id. at ––––, 773 S.E.2d at 323. However, "[w]hen discretionary rulings are made under a misapprehension of the law, this may constitute an abuse of discretion." Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC , 236 N.C.App. 86, 763 S.E.2d 296, 299 (2014) (citations and internal quotation marks omitted), appeal dismissed and disc. review denied , 368 N.C. 244, 769 S.E.2d 192 (2015).

Here, the trial court concluded that allowing Vaughan's motion to amend would be futile because the amended complaint would not relate back to the filing date of her original complaint, a matter controlled by subsection (c) of Rule 15:

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.

N.C. Gen. Stat. § 1A–1, Rule 15(c) (2015). In the two decades since Rule 9(j) was enacted, our State's appellate courts have frequently considered the interplay between its certification requirements and the amendment and "relate back" provisions of Rule 15(a) and (c).

" 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. Rule 9(j) thus operates as a preliminary qualifier to control pleadings rather than to act as a general mechanism to exclude expert testimony." Moore v. Proper , 366 N.C. 25, 31, 726 S.E.2d 812, 817 (2012) (citation and internal quotation marks omitted; emphasis in original). Soon after Rule 9(j) was enacted, this Court held that "a medical malpractice complaint that fails to include [any ] Rule 9(j) certification [cannot] be subsequently amended pursuant to Rule 15 to include the Rule 9(j) certification." Keith v. N. Hosp. Dist. , 129 N.C.App. 402, 404, 499 S.E.2d 200, 202, disc. review denied , 348 N.C. 693, 511 S.E.2d 646 (1998). More recently, our Supreme Court held that "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." Thigpen v. Ngo , 355 N.C. 198, 204, 558 S.E.2d 162, 166 (2002) (emphasis added). Vaughan cites Thigpen as controlling the outcome of her appeal and "establish[ing] that a medical malpractice plaintiff may amend [her] Rule 9(j) certification and receive benefit of relation back under Rule 15 so long as there is evidence ‘the review occurred before the filing of the original complaint’ in the form of an affidavit or otherwise," such as...