Brisson v. KATHY A. SANTORIELLO, MD, PA, No. 376PA99.

• Decision Date: 05 May 2000
• Docket Number: No. 376PA99.
• Citation: 528 S.E.2d 568,351 N.C. 589
• Court: North Carolina Supreme Court
• Parties: Pamela BRISSON and Dallas Brisson v. KATHY A. SANTORIELLO, M.D., P.A., and Kathy A. Santoriello, M.D.

528 S.E.2d 568

351 N.C. 589

Pamela BRISSON and Dallas Brisson v. KATHY A. SANTORIELLO, M.D., P.A., and Kathy A. Santoriello, M.D.

No. 376PA99.

Supreme Court of North Carolina.

May 5, 2000.

Patterson, Dilthey, Clay & Bryson, L.L.P., by Charles George, Raleigh, for plaintiff-appellees. Yates, McLamb & Weyher, L.L.P., by Barry S. Cobb, Raleigh, for defendant-appellants.

Fuller, Becton, Slifkin & Bell, P.A., by Charles L. Becton and James C. Fuller, Raleigh, on behalf of North Carolina Academy of Trial Lawyers, amicus curiae.

Cranfill, Sumner & Hartzog, L.L.P., by Kari R. Johnson, Raleigh, on behalf of North Carolina Association of Defense Attorneys, amicus curiae.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by James D. Blount, Jr., Michael W. Mitchell, and James Y. Kerr, II, Raleigh, on behalf of North Carolina Medical Society; and Manning, Fulton & Skinner, P.A., by John B. McMillan, Raleigh, on behalf of North Carolina Citizens for Business and Industry, amici curiae.

ORR, Justice.

This case arises out of a medical malpractice action filed in Superior Court, Cumberland County, against Dr. Kathy A. Santoriello (Dr. Santoriello), an obstetrician-gynecologist (OB-GYN) practicing in Fayetteville, North Carolina. Plaintiffs Pamela Brisson and Dallas Brisson alleged negligence and loss of consortium, seeking damages in excess of $10,000, plaintiffs' costs, and attorneys' fees.

The facts relevant to this action are as follows. On 27 July 1994, Dr. Santoriello performed an abdominal hysterectomy on plaintiff Pamela Brisson. Several months later, it was discovered that plaintiff had an obstruction of her vaginal canal that prevented her from having sexual intercourse. Subsequently, on 3 June 1997, plaintiffs filed a complaint alleging negligence and loss of consortium against defendants Kathy A. Santoriello, M.D., P.A., and Kathy A. Santoriello, M.D., arising out of defendant Santoriello's performance of the 27 July 1994 abdominal hysterectomy. Plaintiffs alleged, "Defendant Physician, through Defendant P.A., performed said surgery negligently, in that Defendant failed to exercise or possess that degree of skill, care, and learning ordinarily exercised or possessed by the average obstetrician/gynecologist, taking into account the existing state of knowledge and practice in the profession." Plaintiffs then claimed that defendants' negligence proximately resulted in various severe and permanent physical injuries in addition to plaintiff Dallas Brisson's loss of consortium from the companionship of his wife, plaintiff Pamela Brisson.

On 22 August 1997, defendants filed a motion to dismiss the case pursuant to Rules 9(j) and 12(b)(6) of the North Carolina Rules of Civil Procedure, arguing that plaintiffs' complaint failed to meet the requirements set forth in N.C. R. Civ. P. 9(j) and also failed to state a claim upon which relief can be granted based on N.C. R. Civ. P. 12(b)(6).

Rule 9(j) explicitly sets out several requirements that a party must meet when pleading a medical malpractice cause of action. In pertinent part, this rule provides as follows:

(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(j)(1) (1999).

Defendants' motion to dismiss was based in part on plaintiffs' failure to include, pursuant to Rule 9(j), a certification in their complaint that plaintiffs had a medical expert who was reasonably expected to qualify as an expert, had reviewed plaintiff's medical care, and was willing to testify that the medical care plaintiff received from defendant Dr. Santoriello did not comply with the applicable standard of care. On 30 September 1997, plaintiffs filed a motion to amend their complaint, along with an attached copy of the proposed amended complaint, claiming that "a physician has reviewed the subject medical care, but it was inadvertently omitted from the pleading (see attached Affidavit of Counsel), and to not grant leave to amend would unduly prejudice plaintiffs, by subjecting her [sic] to a dismissal." Plaintiffs also moved, in the alternative, to voluntarily dismiss their complaint without prejudice pursuant to N.C. R. Civ. P. 41(a)(1).

Following a hearing on defendants' motion to dismiss and plaintiffs' motion to amend the complaint, Judge D.B. Herring denied plaintiffs' motion to amend, but reserved ruling on defendants' motion to dismiss. As a result, on 6 October 1997, plaintiffs voluntarily dismissed their claims against defendants Dr. Santoriello and Kathy Santoriello, M.D., P.A., pursuant to Rule 41(a)(1).

Subsequently, on 9 October 1997, plaintiffs filed another complaint in Superior Court, Cumberland County, that contained essentially the same allegations as the original complaint, except that the new complaint included the appropriate certification required under Rule 9(j). On 20 October 1997, defendants filed an answer and moved for judgment on the pleadings, alleging that plaintiffs' claims were barred by the applicable statutes of limitations and repose pursuant to N.C.G.S. § 1-15(c).

After a hearing in January 1998, Judge Orlando Hudson granted defendants' motion for judgment on the pleadings by order entered 9 February 1998, stating specifically that "the Court holds that the complaint filed on June 3, 1997 does not extend the statute of limitations in this case because it does not comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. The instant complaint, filed on October 9, 1997, is barred by the statute of limitations...."

Plaintiffs then filed two separate motions for relief under N.C. R. Civ. P. 60(b) requesting relief from Judge Herring's order denying plaintiffs' motion to amend their complaint and Judge Hudson's order allowing defendants' motion for judgment on the pleadings. On 26 February 1998, Judge Coy Brewer denied both motions for relief.

Plaintiffs filed notice of appeal with the Court of Appeals, seeking review of the 9 February 1998 order entered by Judge Hudson. The Court of Appeals unanimously reversed Judge Hudson's ruling allowing defendants' motion for judgment on the pleadings and reinstated plaintiffs' causes of action. On 7 October 1999, this Court granted defendants' petition for discretionary review.

We note at the outset that the Court of Appeals, in its opinion, addressed at length the effects of plaintiffs' proposed amended complaint. We find that plaintiffs' motion to amend, which was denied, is neither dispositive nor relevant to the outcome of this case. Whether the proposed amended complaint related back to and superceded the original complaint has no bearing on this case once plaintiffs took their voluntary dismissal on 6 October 1997. It is well settled that "[a] Rule 41(a) dismissal strips the trial court of authority to enter further orders in the case, except as provided by Rule 41(d)[,] which authorizes the court to enter specific orders apportioning and taxing costs." Walker Frames v. Shively, 123 N.C.App. 643, 646, 473 S.E.2d 776, 778 (1996). "`[T]he effect of a judgment of voluntary [dismissal] is to leave the plaintiff exactly where he [or she] was before the action was commenced.'" Gibbs v. Carolina Power & Light Co., 265 N.C. 459, 464, 144 S.E.2d 393, 398 (1965) (quoting 17 Am.Jur. Dismissal, Discontinuance, & Nonsuit § 89, at 161 (1938)). After a plaintiff takes a Rule 41(a) dismissal, "[t]here is nothing the defendant can do to fan the ashes of that action into life[,] and the court has no role to play." Universidad Central Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d 14, 18 n. 4 (1st Cir.1985).

The only issue for us to review on appeal is whether plaintiffs' voluntary dismissal pursuant to N.C. R. Civ. P. 41(a)(1) effectively extended the statute of limitations by allowing plaintiffs to refile their complaint against defendants within one year, even though the original complaint lacked a Rule 9(j) certification. We hold that it does.

Rule 41(a) provides, in pertinent part:

[A]n action or any claim therein may be dismissed by the plaintiff without order of court (I) by filing a notice of dismissal at any time before the plaintiff rests his case.... If an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice under this subsection, a new action based on the same claim may be commenced within one year after such dismissal....

N.C.G.S. § 1A-1, Rule 41(a)(1) (1999). "[A] party always has the time limit prescribed by the general statute of limitation and in addition thereto they get the one year provided in Rule 41(a)(1)." Whitehurst v. Virginia Dare Transport. Co., 19 N.C.App. 352, 356, 198 S.E.2d 741, 743 (1973). "If the action was originally commenced within the period of the applicable statute of limitations, it may be recommenced within one year after the dismissal, even though the base period may have expired in the interim." 2 Thomas J. Wilson, II & Jane M. Wilson, McIntosh North Carolina Practice and Procedure § 1647, at 69 (Supp.1970). Thus, it is important to note that under Rule 41, a plaintiff may "dismiss an action that originally was filed within the statute of limitations and then refile the action after the statute of limitations ordinarily would have expired." Clark v. Visiting Health Prof'ls, ___ N.C.App. ____, ____, 524 S.E.2d 605, 607 (2000).

Defendants argue that plaintiffs' claims were barred by the applicable statute of limitations set out in N.C.G.S. § 1-15(c), which provide that medical malpractice causes of...