817 S.E.2d 370 (N.C. 2018), 42PA17, Vaughan v. Mashburn

Docket Nº:42PA17
Citation:817 S.E.2d 370
Opinion Judge:HUDSON, Justice.
Party Name:Maria VAUGHAN v. Lindsay MASHBURN, M.D. and Lakeshore Women’s Specialists, PC
Attorney:Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields, Raleigh, 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, Charlotte, by...
Case Date:August 17, 2018
Court:Supreme Court of North Carolina
 
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Page 370

817 S.E.2d 370 (N.C. 2018)

Maria VAUGHAN

v.

Lindsay MASHBURN, M.D. and Lakeshore Women’s Specialists, PC

No. 42PA17

Supreme Court of North Carolina

August 17, 2018

Heard in the Supreme Court on 13 December 2017.

Page 371

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.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields, Raleigh, 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, Charlotte, by Chip Holmes and Bradley K. Overcash, for defendant-appellees.

Law Office of D. Hardison Wood, Cary, by D. Hardison Wood; and Knott & Boyle PLLC, by W. Ellis Boyle, for North Carolina Advocates for Justice, amicus curiae.

Roberts & Stevens, P.A., Asheville, by Phillip T. Jackson and Eric P. Edgerton, for North Carolina Association of Defense Attorneys, amicus curiae.

OPINION

HUDSON, Justice.

Here we are asked to decide whether a medical malpractice plaintiff may amend a timely filed complaint to cure a defective Rule 9(j) certification after the statute of limitations has run, when the expert review required by Rule 9(j) occurred before the filing of the original complaint. The Court of Appeals concluded that Rule 9(j) does not permit a plaintiff to amend in these circumstances and affirmed the trial court’s dismissal of plaintiff’s medical malpractice complaint. Vaughan v. Mashburn, __ N.C.App. __, 795 S.E.2d 781 (2016). Because we conclude that the procedures plaintiff followed here are consistent with the letter and spirit of Rule 9(j), we reverse the decision of the Court of Appeals and remand to the trial court for further proceedings.

Background

On 3 May 2012, plaintiff underwent a laparoscopic hysterectomy at Lake Norman Regional Medical Center in Mooresville, North

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Carolina. The operation was performed by defendant Lindsay Mashburn, M.D., a physician who practices in the area of obstetrics and gynecology and who is an employee of defendant Lakeshore Women’s Specialists, PC. Plaintiff alleges that during this surgery defendant Mashburn "inappropriately inflicted an injury and surgical wound to the Plaintiff’s right ureter" resulting in "severe bodily injuries and other damages."

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 Rule 9 ("Pleading special matters") of the North Carolina Rules of Civil Procedure, plaintiff alleged in the complaint: 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 Rule 9(j), which stated: (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[.]

N.C.G.S. § 1A-1, Rule 9 (2009) (emphasis added). In 2011 the legislature amended Rule 9(j), and the rule now provides, in pertinent part: (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[.]

Id., Rule 9 (2017) (emphasis added); see also Act of June 13, 2011, ch. 400, sec. 3, 2011 N.C. Sess. Laws 1712, 1713. Thus, plaintiff’s Rule 9(j) certification omitted an assertion that "all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry" had been reviewed as required by the applicable rule.

On 10 June 2015, defendant Mashburn filed a motion to dismiss under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, asserting that the complaint failed "to state a claim upon which relief can be granted." Two days later, defendants filed an answer, which incorporated by reference defendant Mashburn’s motion to dismiss. On 30 June 2015, plaintiff filed a motion for leave to

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file an amended complaint under Rule 15(a) of the North Carolina Rules of Civil Procedure to "add[ ] a single sentence to paragraph 21 of Plaintiff’s original Complaint that accurately reflects the events that occurred prior to the filing of Plaintiff’s original Complaint," specifically that "all medical records pertaining to the alleged negligence that are available to Plaintiff after reasonable inquiry have been reviewed before the filing of this Complaint," as required by Rule 9(j). In support of her motion for leave to file an amended complaint, plaintiff submitted to the trial court an affidavit of her original trial counsel, an affidavit of Dr. Hirsch, and her responses to defendants’ Rule 9(j) interrogatories— all indicating that Dr. Hirsch reviewed plaintiff’s medical care and related medical records before the filing of plaintiff’s original complaint.

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 Rule 9(j) certification and receive the benefit of relation back under Rule 15(c) so long as there is evidence "the review occurred before the filing of the original complaint." The Court of Appeals disagreed, noting that Thigpen was inapposite because the Court in that case did not address the issue of relation back under Rule 15(c). Vaughan, __ N.C.App. at __, 795 S.E.2d at 784-85. Relying instead on its own precedent in Alston v. Hueske, 244 N.C.App. 546, 781 S.E.2d 305 (2016), and Fintchre v. Duke University, 241 N.C.App. 232, 773 S.E.2d 318 (2015), the Court of Appeals...

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