Miller v. Carolina Coast Emergency Physicians, LLC, 222PA21-1

Docket Nº222PA21-1
Citation2022 NCSC 97
Case DateAugust 19, 2022
CourtUnited States State Supreme Court of North Carolina


CHARLOTTE POPE MILLER, Administratrix of the Estate of the Late JOHN LARRY MILLER


No. 222PA21-1

Supreme Court of North Carolina

August 19, 2022

Heard in the Supreme Court on 11 May 2022

On discretionary review pursuant to N.C. G.S. § 7A-31 of a unanimous decision of the Court of Appeals, 277 N.C.App. 449, 2021-NCCOA-212, affirming in part, reversing in part, vacating in part, and remanding an order entered on 9 November 2015 by Judge Stanley L. Allen, an order entered on 17 January 2017 by Judge Gale M. Adams, and orders entered on 23 April 2019 and 4 October 2019 by Judge Claire V. Hill in Superior Court, Harnett County.

Hedrick Gardner Kincheloe &Garofalo LLP, by Patricia P. Shields and Linda Stephens, and Brent Adams &Associates, by Brenton D. Adams, for plaintiffappellee Charlotte Pope Miller.

Yates, McLamb, &Weyher, L.L.P., by Maria P. Wood and Madeleine M. Pfefferle, for defendant-appellant Harnett Health Systems, Inc. d/b/a/ Betsy Johnson Regional Hospital.


¶ 1 To bring a medical malpractice claim in North Carolina, a plaintiff must


comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. Rule 9(j) provides in relevant part that a plaintiff's pleadings must "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 [(1)] is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and [(2)] 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) (2021). The question in this case is whether a trial court must dismiss a complaint that facially complies with Rule 9(j) when it is subsequently determined that the plaintiff's Rule 9(j) witness is unwilling to testify that the defendant in a medical malpractice action violated the applicable standard of care in one (but only one) of the numerous ways alleged in the plaintiff's complaint.

¶ 2 When a defendant files a motion to dismiss a complaint that facially complies with Rule 9(j), the dispositive question is whether, taking the evidence in the light most favorable to the plaintiff, it was reasonable for the plaintiff to believe that at the time the complaint was filed the witness would be willing to testify against the defendant. See Preston v. Movahed, 374 N.C. 177, 189 (2020). The inquiry is necessarily focused on the information available to the plaintiff at the time the Rule 9(j) certification was tendered, not information that came to light after the complaint was filed. In this case, there is ample evidence in the record to support the conclusion


that the plaintiff, Charlotte Pope Miller, reasonably believed that her Rule 9(j) witness was willing to testify that defendant Harnett Health Systems, Inc. (Harnett Health) violated the applicable standard of care in the ways alleged in her complaint. Therefore, we hold that the Court of Appeals properly affirmed the trial court's denial of Harnett Health's motion to dismiss for failure to comply with Rule 9(j). The Court of Appeals also utilized the correct standard of review in examining the trial court's grant of Harnett Health's motion to exclude another witness under Rule 702 of the North Carolina Rules of Evidence. Accordingly, we affirm the decision of the Court of Appeals.

I. Background

¶ 3 On 8 March 2010, John Larry Miller complained of a painful, distended stomach and being unable to urinate. John's wife, Charlotte, drove him to the emergency room at Betsy Johnson Regional Hospital in Dunn. At the time, Betsy Johnson Regional Hospital was operated by Harnett Health. At the hospital, John was seen by Dr. Ahmad S. Rana, an emergency room physician, who examined John and ordered placement of a catheter and a urinalysis. Dr. Rana prescribed antibiotics and discharged John that evening, against Charlotte's wishes. The following evening, John was still experiencing significant pain and remained unable to urinate, so Charlotte called an ambulance to take him back to Betsy Johnson Regional Hospital, where he was again seen by Dr. Rana. Dr. Rana ordered blood work, which indicated


renal failure. John was pronounced dead at midnight. Throughout John's stay at the hospital, Charlotte took handwritten notes documenting her view of the treatment Dr. Rana and emergency room nurses provided to her husband.

¶ 4 On 30 September 2011, Charlotte Miller filed a medical malpractice complaint as the administrator of John's estate against Harnett Health, Dr. Rana, and Carolina Coast Emergency Physicians, LLC. Plaintiff took a voluntary dismissal and timely refiled the complaint underlying these proceedings on 6 February 2014. In her 2014 complaint, plaintiff certified that all relevant materials had 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 professional care rendered by the defendants to [John] did not comply with the applicable standard of care and that such failure to comply with the appropriate standard of care was a cause of the death of [John]." That person was subsequently identified as Dr. Robert Leyrer, a board-certified emergency medicine physician then practicing in Florida.

¶ 5 In her complaint, plaintiff alleged that Harnett Health violated the standard of care applicable to John at the time he was treated through its employment of nurses who "failed to exhibit the knowledge and skill and experience of practitioners with similar training and experience practicing in the Dunn, North Carolina community." The complaint also alleged that Harnett Health was negligent in various other ways not relating to its nursing staff. For example, plaintiff alleged that


Harnett Health also violated the applicable standard of care through its employment of Dr. Rana as an apparent agent of Harnett Health and by "fail[ing] to insure through its policies and procedures that [John] receive[d] the requisite degree and standard of hospital care and treatment regularly experienced at similar hospitals," among numerous other assertions. In an affidavit submitted shortly after the 2014 complaint was filed, Dr. Leyrer attested that before the complaint was filed, he had spoken with plaintiff's attorneys and "expressed [his] opinion that the Defendants violated the appropriate standard of care in the ways specified in the Complaint." In the affidavit, Dr. Leyrer also stated that he had communicated his "willingness to come to NC and testify in this case as to the negligence of the Defendants and the various violations of the appropriate standard of care by the Defendants which are set out in the Complaint, and copy of which is attached hereto and incorporated by reference."

¶ 6 Dr. Leyrer sat for a deposition on 29 May 2015. During the deposition, Dr. Leyrer explained why he believed Dr. Rana's treatment of John fell short of the applicable standard of care. Dr. Leyrer was not specifically asked for his opinion regarding the adequacy of the treatment rendered by Harnett Health's nursing staff. However, at various times during the deposition, Dr. Leyrer indicated that his criticisms of the treatment John received were limited to his criticisms of Dr. Rana. When counsel for Harnett Health asked Dr. Leyrer whether "outside of what you told


me with regard to the care and treatment provided by Dr. Rana . . . the remaining treatment would have been within the standard of care, correct?", Dr. Leyrer responded that "[a]t this time I can't think of anything else, correct." When asked whether he would "agree . . . that with regard to the other care and treatment set forth in the medical records for March 9 that care and treatment was within the standard of care outside of the deviations that you described for us," Dr. Leyrer replied that "[a]t this time I believe it was." Dr. Leyrer also disclosed that he did not consider himself "an emergency nursing expert." Elsewhere, Dr. Leyrer agreed that he had not previously "expressed any opinions to Plaintiff's counsel outside of those [he had] just listed [concerning Dr. Rana] . . . regarding deviations from the standard of care[.]"

¶ 7 Following the deposition, Harnett Health filed a motion to dismiss pursuant to Rule 9(j), asserting that plaintiff "could not have reasonably expected Dr. Leyrer to qualify as an expert witness against Harnett Health" and that Dr. Leyrer "is also not willing to testify that the care rendered by Harnett Health did not comply with the applicable standard of care." Specifically, Harnett Health argued that dismissal was warranted because Dr. Leyrer "testified that he did not have any opinions regarding any care provided by nurses or other personnel at Harnett Health."

¶ 8 As part of its response in opposition to Harnett Health's motion to dismiss, plaintiff's counsel submitted an affidavit stating that "prior to filing the initial


complaint," Dr. Leyrer communicated to counsel "his ability and willingness to testify that the defendant hospital did not comply with the appropriate standard of care and that the violation of this standard of care by the defendant hospital caused the death of the late John Miller." On 9 November 2015, the trial court denied Harnett Health's motion to dismiss based on its determination that

[a]t the time [plaintiff's attorney] made his original 9(j) Certification in his filing of the complaint on September 30, 2011, and his filing of the subsequent complaint on February 6, 2014 . . . [plaintiff's attorney] exercised reasonable care and diligence and reasonably expected Dr. Leyrer to qualify as an

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