Holdstock v. Duke Univ. Health Sys., Inc.

• Decision Date: 03 March 2020
• Docket Number: No. COA18-1312,COA18-1312
• Citation: 841 S.E.2d 307,270 N.C.App. 267
• Parties: Rebecca HOLDSTOCK and Louis Holdstock, Plaintiffs, v. DUKE UNIVERSITY HEALTH SYSTEM, INC., d/b/a Duke University Medical Center, Duke University Hospital and/or Duke Health, Defendants.
• Court: North Carolina Court of Appeals

270 N.C.App. 267

841 S.E.2d 307

Rebecca HOLDSTOCK and Louis Holdstock, Plaintiffs,

v.DUKE UNIVERSITY HEALTH SYSTEM, INC., d/b/a Duke University Medical Center, Duke University Hospital and/or Duke Health, Defendants.

No. COA18-1312

Court of Appeals of North Carolina.

Filed: March 3, 2020

Bailey & Glasser, LLP, by Benjamin J. Hogan, pro hac vice, and George B. Currin, Raleigh, for Plaintiffs-Appellants.

Yates, McLamb & Wyher, L.L.P., Raleigh, by Dan J. McLamb and Lori Abel Meyerhoffer, and Robinson Bradshaw, by Mark W. Merritt and Brian L. Church, Charlotte, for Defendants-Appellees.

McGEE, Chief Judge.

Rebecca Holdstock ("Ms. Holdstock") and Louis Holdstock (collectively, "Plaintiffs") appeal from an order striking the affidavit of Plaintiffs' designated expert and granting summary judgment in favor of Duke University Health System, Inc., d/b/a Duke University Medical Center, Duke University Hospital and/or Duke Health ("Defendant Duke").

I. Factual and Procedural History

Ms. Holdstock contacted Duke Health in early 2013 complaining of dizziness and "syncopal episodes." Dr. Scott A. Strine, a neurologist, ordered an MRI of Ms. Holdstock's brain, which was performed on 1 March 2013 (the "2013 MRI"). Dr. Hasan A. Hobbs, a radiologist and neuroradiology fellow, and Dr. Jenny K. Hoang, a neuroradiologist, interpreted the 2013 MRI as an "unremarkable brain MR." At a follow-up appointment on 21 March 2013, Dr. Strine reviewed the results of the 2013 MRI and found the images of Ms. Holdstock's brain "completely unremarkable."

Ms. Holdstock returned to Duke Health on 21 September 2015 complaining of "headaches, vision changes, nausea, photophobia, worsening tinnitus and questionable hearing loss." Audiological testing confirmed Ms. Holdstock was suffering from decreased hearing in her left ear, and a second MRI was ordered. At the follow-up appointment on 23 September 2015, Dr. David Kaylie, an otolaryngologist, diagnosed Ms. Holdstock with an acoustic neuroma

in her left ear. Ms. Holdstock testified in her deposition that when Dr. Kaylie reviewed the 2013 MRI, he stated "[t]his is awkward. They missed something two-and-a half years ago on your MRI. You have an acoustic neuroma. This explains everything that you've been through."

Subsequently, physicians at the Mayo Clinic removed the acoustic neuroma

in Ms. Holdstock's left ear. Post-operative audiological testing revealed Ms. Holdstock "had suffered a complete hearing loss in her left ear."

Plaintiffs' counsel e-mailed Dr. Marc L. Bennett ("Dr. Bennett") on 14 November 2016 and requested he "review the records and advise us if you believe there was any negligence in failing to diagnose the acoustic neuroma

in the first instance and, secondly, what harm was occasioned by the delay in diagnosis[.]" Plaintiffs' counsel sent Plaintiffs an e-mail on 7 December 2016, stating "I spoke with the ENT reviewer Dr. Marc Bennett from Vanderbilt. Without getting into great detail, he says the neuroma is very clear on the original MRI and should never have been missed."

Plaintiffs filed a complaint on 16 December 2016 against Dr. Strine, Dr. Hobbs, Dr. Hoang ("Defendant Doctors") and Defendant Duke (collectively, "Defendants"), alleging professional negligence of Defendant Doctors, negligence of Defendant Duke, and imputed negligence of Defendant Doctors to Defendant Duke. Plaintiffs filed an amended complaint on 19 December 2016, which included the certification language required by Rule 9(j) for medical malpractice actions:

Plaintiff asserts that the medical care, treatment and all medical records pertaining to the alleged negligence that are available to plaintiff after a 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.

In addition to Plaintiffs' allegations of negligence, Plaintiffs also alleged that "the pre-filing requirements of Rule 9(j) of the NC Rules of Civil Procedure [are] unconstitutional."

Defendants filed an answer on 21 March 2017, asserting Defendants' actions complied with the standard of care and denying any negligence. Plaintiffs filed answers to Defendants' Rule 9(j) interrogatories on 4 June 2018. Plaintiffs identified Dr. Bennett as the "person[ ] who ... [Plaintiffs] reasonably expect to qualify as an expert witness ... and who is willing to testify that the medical care of Scott Strine, D.O., Hasan Hobbs, M.D. and Jenny Hoang, M.D. did not comply with the applicable standard of care."

Dr. Bennett was deposed on 3 January 2018. Defendants' counsel asked Dr. Bennett, "you were never willing to testify that Dr. Strine, Dr. Hoang, or Dr. Hobbs violated the standard of care; is that correct?" Dr. Bennett answered, "[c]orrect." Dr. Bennett was asked, "you were never willing—you have never been willing to testify that the medical care of Scott Strine, Hasan Hobbs, or Jenny Hoang did not comply with the applicable standard of care; is that correct?" Dr. Bennett responded, "[y]es, that's correct." Plaintiffs' counsel intervened and stated on the record:

I don't understand these questions. We didn't designate him as a standard of care expert. He's not in the same specialty as ... these doctors. We wouldn't have asked him to render a standard of care ... You asked him if he was a specialist in these specialties. He said no. You've asked him before whether he's offered standard of care opinions or would he be willing to, and he said no because they are different specialists. ... I can represent [Dr. Bennett] wasn't asked to look at the standard of care for Dr. Strine, Dr. Hoang, or Dr. Hobbs. I wouldn't ask him to do it because he's in a different specialty and he never expressed standard of care opinions to me. [ ] I'm not going to ask him about standard of care at the time of trial.

Defendant Duke filed a motion to dismiss Plaintiffs' complaint pursuant to Rule 12(b)(6) or, in the alternative, a motion for summary judgment pursuant to Rule 56 on 1 June 2018. Defendant Duke alleged that Plaintiffs failed to comply with the requirements of Rule 9(j) because Dr. Bennett "was not reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence," did not form the opinion that "any health care provider breached the applicable standard of care," and was unwilling "to testify that the medical care did not comply with the applicable standard of care under Rule 9(j)."

Plaintiffs filed an affidavit from their counsel and an affidavit from Dr. Bennett "to clarify" Dr. Bennett's deposition testimony on 15 June 2018. In his affidavit, Dr. Bennett explained:

I advised counsel for Ms. Holdstock that I was willing to testify the MRI images taken in 2013 clearly show an acoustic neuroma

that should not have been missed and that the ultimate delay in diagnosis of the acoustic neuroma led to a loss of chance for her to preserve hearing because of the growth of the tumor caused by the delay in diagnosis.

Plaintiffs' counsel explained in his affidavit:

That based on Dr. Bennett's education, training and experience, coupled with his review of the medical records and MRI images, I believed that I had met the requirements of Rule 9(j) in getting a qualified expert to review the matter and who held the opinion that a deviation from the standard of care occurred prior to filing the lawsuit and in response to the Defendant's Rule 9(j) interrogatories.

Plaintiffs filed a response to Defendant Duke's motion to dismiss or, in the alternative, motion for summary judgment on 2 July 2018. Defendant Duke filed a motion to strike Dr. Bennett's affidavit on 5 July 2018 stating it was "in direct conflict with Dr. Bennett's prior deposition testimony." Following a hearing on 10 July 2018, the trial court orally ruled "[P]laintiff's [sic] have failed to comply with Rule 9(j) ; the motion to strike Dr. Bennett's affidavit is allowed. The motion for summary judgment is allowed for the reasons argued by the defense."

The trial court then entered an order striking Dr. Bennett's affidavit and granting summary judgment pursuant to Rule 9(j) and Rule 56 on 25 July 2018, concluding that Rule 9(j) was constitutional, Dr. Bennett's affidavit was a "sham affidavit" that should be stricken, Plaintiffs failed to comply with the requirements of Rule 9(j), and "[t]he facially valid Rule 9(j) certification of the Plaintiffs' amended complaint [was] not supported by the facts." Plaintiffs appeal.

II. Analysis

Plaintiffs make two substantive arguments on appeal. First, Plaintiffs contend the trial court erred by striking Dr. Bennett's affidavit and granting Defendant Duke's motion for summary judgment because the record demonstrates that Plaintiffs satisfied the requirements of Rule 9(j) at the time the complaint was filed. Second, Plaintiffs argue Rule 9(j) violates the open courts guarantee preserved in the North Carolina Constitution and the equal protection clauses of the North Carolina and United States Constitutions. We do not consider the merits of Plaintiffs' arguments because, assuming arguendo Plaintiffs properly "raised" a constitutional facial challenge to Rule 9(j), N.C.G.S. § 1-267.1(a1) (2017) and N.C.G.S. § 1-81.1 (2017) required that Plaintiffs' facial challenge be heard and decided by a three-judge panel in the Superior Court of Wake County. Because this did not occur, Plaintiffs' purported facial challenge has yet to be resolved and the 25 July 2018 order from which Plaintiffs purport to appeal is interlocutory. We therefore vacate and remand.

A.

In order to reach our ultimate holding, we must conduct an analysis of N.C.G.S. § 1-267.1 and N.C.G.S. § 1-81.1 —which require certain challenges to the acts of the General Assembly to be decided by a three-judge panel in Superior Court, Wake County, in order to determine if and how these statutes apply in this case. N.C.G.S. § 1-267.1 and N.C.G.S....