Alston v. Hueske

• Decision Date: 05 January 2016
• Docket Number: No. COA 15–207.,COA 15–207.
• Citation: 244 N.C.App. 546,781 S.E.2d 305
• Court: North Carolina Court of Appeals
• Parties: Antonisha ALSTON, Administrator, Estate of Antonio Bellamy, Plaintiff, v. Amy HUESKE, Defendant.

244 N.C.App. 546

781 S.E.2d 305

Antonisha ALSTON, Administrator, Estate of Antonio Bellamy, Plaintiff,

v.Amy HUESKE, Defendant.

No. COA 15–207.

Court of Appeals of North Carolina.

Jan. 5, 2016.

Law Offices of Alvin L. Pittman, by Alvin L. Pittman, for Plaintiff–Appellant.

Yates, McLamb, and Weyher, LLP, Raleigh, by Samuel G. Thompson, Jr., for Defendant–Appellee.

HUNTER, JR., Robert N., Judge.

Antonisha Alston, the administrator for the Estate of Antonio R. Bellamy ("the Administrator") appeals from the trial court's order dismissing Plaintiff's complaint under Rules 9(j) and 12(b)(6) as well as the court's denial of his motion to amend the pleadings. After review, we affirm the trial court's dismissal.

I. Factual and Procedural Background

On 23 December 2013, one week before the statute of limitations ran, the Administrator filed an unverified complaint against Dr. Herendra Arora ("Dr. Arora") and Amy Hueske ("Hueske"), a nurse, seeking damages for medical negligence. The complaint alleges the following narrative.

On 27 December 2011, Antonio Bellamy ("Bellamy"), suffered a burn on his right foot and was subsequently hospitalized at University of North Carolina Hospitals in Chapel Hill, North Carolina. On 30 December 2011, Bellamy underwent a skin graft to address the burn. This procedure employed the use of a Laryngeal Mask Airway

to facilitate his breathing. During the operation, the attending anesthesiologist, Dr. Arora, left the room for reasons not described in the complaint. Medical staff, namely Dr. Arora and nurse Hueske failed to monitor or document his breathing, oxygenation, and ventilation for three minutes.

During this time, Bellamy's blood pressure and heart rate fell, requiring medical staff to administer medication to increase Bellamy's blood pressure. When this proved insufficient, medical staff administered CPR. Finally, medical staff inserted an endotracheal tube

into Bellamy's airway. The tube first inserted was not properly inspected and had a leak which required the tube to be exchanged for another. During the events described above, Bellamy suffered a period of decreased oxygen for approximately fifteen minutes which led to cardiac arrest. Medical staff placed Bellamy on a ventilator. Through hospital representatives, Dr. Arora and Hueske relayed to Bellamy's family that there was a "small complication involving an equipment malfunction, but it was detected in time before any harm was done ... [Bellamy] would be fine." The day after the surgery, Bellamy's family was pressured to make a decision, and ultimately decided to remove Bellamy from the ventilator. Bellamy passed away in the hospital on 1 January 2012.

In order to comply with Rule 9(j), the complaint alleged the following:

29. Prior to commencing this action, the medical records were reviewed and evaluated by a duly Board Certified who opined that the care rendered to Decedent was below the applicable standard of care.

30.... The medical care referred to in this complaint has been reviewed by person(s) who are reasonably expected to qualify as expert witnesses, or whom the plaintiff will seek to have qualified as expert witnesses under Rule 702 of the Rules of Evidence, and who is willing to testify that the medical care rendered plaintiff by the defendant(s) did not comply with the applicable standard of care.

On 24 February 2014, Dr. Arora and Hueske filed an unverified answer generally denying the allegations of the Administrator's complaint. Dr. Arora and Hueske asserted defenses under Rule 12(b)(6) and Rule 9(j) within their answer. Following the pleading, the Administrator agreed to voluntarily dismiss Dr. Arora pursuant to Rule 41. This left only the nurse, Hueske, as a Defendant.

The Administrator requested leave to amend the pleadings in order to clearly comply with Rule 9(j), but the trial court denied the Administrator's request under Rule 15(a). The court reasoned the legislature intended 9(j) be satisfied from the beginning, at the time the complaint was filed. The trial court dismissed the case without prejudice pursuant to Rule 12(b)(6) and Rule 9(j) in an order dated 25 September 2014. The Administrator timely filed a notice of appeal with this Court.

II. Jurisdiction

Jurisdiction lies in this court by right pursuant to N.C. Gen.Stat. § 7A–27(b)(1) from a final judgment of a superior court.

III. Standard of Review

We review the trial court's dismissal de novo. The standard of review of a Rule 12(b)(6) motion to dismiss is de novo. Leary v. N.C. Forest Prods., Inc.,

157 N.C.App. 396, 400, 580 S.E.2d 1, 4 (2003). Likewise, a trial court's order dismissing a complaint pursuant to Rule 9(j) is reviewed de novo on appeal because it is a question of law. Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C.App. 238, 256, 677 S.E.2d 465, 477 (2009).

IV. Analysis

Rule 9 was amended in 1995 by adding a new subsection, subsection (j). N.C. Sess. Law 1995–309. At that time, the newly enacted Rule 9(j) required any medical malpractice complaint to 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; or

(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.

Id.

In Thigpen v. Ngo, the Supreme Court of North Carolina interpreted Rule 9(j) where the plaintiff failed to specify that the medical records had been reviewed by an expert before the plaintiff filed the complaint. Thigpen v. Ngo, 355 N.C. 198, 199, 558 S.E.2d 162, 163–164 (2002). In Thigpen, before the expiration of the statute of limitations, plaintiff filed an amended complaint certifying the " ‘medical care has been reviewed’ by someone who would qualify as an expert." Id., 558 S.E.2d at 163–164.

The Supreme Court reasoned that the statute's language was clear and unambiguous in requiring dismissal if the requirements of Rule 9(j) were not met. Id. at 202, 558 S.E.2d at 165. "[M]edical 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 leads to dismissal." Id., 558 S.E.2d at 165.

In 2011, the General Assembly further amended Rule 9(j) effective 1 October 2011. N.C. Sess. Law 2011–400. As it reads today, Rule 9(j) requires any complaint alleging medical malpractice 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.

(2) 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 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; or

(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.

N.C. Gen.Stat. § 1A–1, Rule 9(j) (2013) (emphasis added to reflect amendment). The Supreme Court of North Carolina decided a case under Rule 9(j) again in 2012, noting that although Rule 9(j) was amended, the requirements remain "substantially unchanged."

Moore v. Proper, 366 N.C. 25, 29 n. 1, 726 S.E.2d 812, 816 n. 1 (2012).

It is important for persons filing a complaint under Rule 9(j) to ensure compliance with the rule at the time of filing. Expert review "must take place before the filing of the complaint." Thigpen, 355 N.C. at 205, 558 S.E.2d at 167. Our courts have strictly enforced this requirement because of the legislature's purpose in enacting Rule 9(j).

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.

Thigpen, 355 N.C. at 203–204, 558 S.E.2d at 166 (emphasis added).

In addition, Rule 9(j) requires the medical records and medical care be "reviewed by a person who is reasonably expected to qualify as an expert witness." N.C. Gen.Stat. § 1A–1, Rule 9(j)(1) (2013). To comply, the record and care reviewer must be reasonably expected to qualify under Rule 702 of the North Carolina Rules of Evidence. Moore, 366 N.C. at 26, 726 S.E.2d at 814. Rule 702(b) governs expert testimony in medical malpractice actions. An expert in a medical malpractice action must be a licensed health care provider, and if the party is a specialist, the expert must specialize in the same or a similar specialty as the party against whom the testimony...