Moore v. Proper
| Decision Date | 06 September 2011 |
| Docket Number | No. COA10–1475.,COA10–1475. |
| Citation | 715 S.E.2d 586 |
| Court | North Carolina Court of Appeals |
| Parties | Janet E. MOORE, Plaintiff,v.Daniel H. PROPER, Shaun O'Hearn, Dr. Shaun O'Hearn, DDS, P.A., and Affordable Care, Inc., Defendants. |
OPINION TEXT STARTS HERE
Appeal by Plaintiff from Order entered 20 August 2010 by Judge James L. Baker, in Madison County Superior Court. Heard in the Court of Appeals 13 April 2011.
Long, Parker, Warren, Anderson & Payne, P.A., Asheville, by Steven R. Warren, for Plaintiff-appellant.
Cranfill Sumner & Hartzog LLP, by Jaye E. Bingham, Raleigh, for Defendant-appellee Daniel H. Proper.Shumaker, Loop & Kendrick, LLP, Charlotte, by Scott A. Hefner and Scott M. Stevenson, for Defendants-appellees Shaun O'Hearn, Dr. Shaun O'Hearn, DDS, P.A., and Affordable Care, Inc.
Janet E. Moore (“Plaintiff”) sought treatment for a toothache on 16 January 2006 and was treated by Dr. Proper, a dentist in Dr. Shaun O'Hearn's office. On 12 January 2009, Plaintiff's counsel filed a motion and obtained an order from the court pursuant to Rule 9(j) extending the statute of limitations in a medical malpractice action to 16 May 2009 to seek an appropriate expert witness. Plaintiff's 5 March 2009 Complaint alleges Dr. Proper fractured her jaw while extracting a tooth, and thereafter discharged her without notifying her of the fracture and providing the proper care. Plaintiff alleges Dr. O'Hearn was negligent in failing to provide Plaintiff care after the fracture and that O'Hearn's office and Affordable Care are liable under the theories of respondeat superior, agency, or vicarious liability.
As required by Rule 9(j) of the North Carolina Rules of Civil Procedure, the Complaint contained the following language: “[t]he medical care in this case has been reviewed by Dr. Joseph C. Dunn, who is reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence and who is willing to testify that the medical care provided by the Defendants did not comply with the applicable standard of care.” Defendants, in answering this allegation, denied the allegation for lack of information and belief.
Pursuant to an order of the trial court dated 10 August 2009 (which does not appear in the record), Plaintiff provided an “Expert Witness Designation” which identified Dr. Joseph C. Dunn as Plaintiff's expert witness. The designation describes Dr. Dunn as a 1966 graduate of the University of North Carolina at Chapel Hill and a 1970 graduate of the University of Louisville School of Dentistry. Dr. Dunn also practiced in the United States Dental Corp. and practiced in Asheville for almost 25 years. Dr. Dunn explained the alleged deviation from the applicable standard of care as follows:
The Plaintiff was not treated in accordance with the expected standard of care for treatment by a General Dentist in North Carolina in that she was not advised of the risks of a fractured jaw occurring from any treatment which was to be afforded by Dr. Proper, Dr. Proper did not take any steps to prevent the fracture of the jaw if extraction became difficult and he failed to provide for her proper follow up care after she experienced pain as a result of the extraction.
Defendants served 10 interrogatories pursuant to Rule 9(j). Dr. Dunn answered the interrogatories, in part, as follows:
2. State whether you practice dentistry and, if so, what percentage of your professional time was spent in the clinical practice of dentistry, during January, 2005 to January, 2006, and, if not, in what specialty did you practice during that time?
ANSWER: I retired in July 1997 after 35 years of general dentistry practice. However, I have maintained a valid license to practice general dentistry in good standing since my retirement in July of 1997.
3. State whether you taught students in an accredited health professional school or an accredited residence or clinical research program in the area of dentistry and, if so, what percentage of your professional time was spent in teaching students dentistry during January, 2005 to January, 2006.
ANSWER: N/A
After receipt of these Answers, Defendants did not immediately seek to dismiss Plaintiff's Complaint. Discovery continued.
On 29 April 2010, Dr. Dunn was deposed by Defendants. Among the answers given in his deposition were the following responses:
Q. I want to talk a little bit about the time period from January of 2005 until January of 2006. Were you actually practicing dentistry then?
A. I was doing the same fill-in work.
Q. Do you recall how many days you filled in that year?
A. It was a lot more than it is now, but, I—no, I couldn't really give you a number. I'll throw out one, 30 days maybe. I really don't know....
Q. I know you don't remember a whole lot about that time, but can you—we're going through the same exercise of breaking it down percentage wise of your practice from January of 2005 until January of 2006. What percentage of your time was in the active clinical practice of dentistry?
A. Well, you know, that is really an unfair question. Whenever you are looking at a patient, you are practicing clinical dentistry.
Q. Right.
A. Whether you are diagnosing it or looking at their cleaning, or you're filling a tooth, taking out a tooth. So I would say when I am there it is 100 percent....
Q. All right. Over the entire year, of all the time you spent in a year of your professional time—because I understand at that point in time you were also running for mayor?
A. Uh-huh [yes].
Q. You were retired spending time with your grandchildren?
A. Uh-huh [yes].
Q. What percentage of your time are you actually seeing patients?
A. Okay. Gosh, that's—
[Plaintiff's Lawyer]: Is that a 24 hour day time? Is that an eight hour day time?
Q. Let's say an eight hour work day. Of all the eight hour work days in any given year—
A. Three hundred sixty-five days a year.
Q. You are not working on the weekends, are you?
A. Okay.
Q. You're working—dentist[s] work four days a week?
A. Yeah, most of them.
Q. All right. Of those four days a week, we will assume that there are eight professional hours in a day. What percentage over the entire year are you working in the active clinical practice of dentistry?
A. I would say it's got to be less than five percent, I guess.
Q. Less than five percent?
A. Uh-huh (yes). That is just a thrown out number.
Q. But it's not 95 percent?
A. No.
Q. You wouldn't say that? It's not 50 percent?
A. No, it's just as needed you know....
Q. So just so I am clear, you believe that your active clinical practice of dentistry was roughly less than five percent of your professional time?
A. Yes.
Q. Tell me a little bit about running for mayor, how much time did that take up?
A. It took up a lot.
Q. I'm sure.
A. You know, I'm on city council too, that was a lot of work.
Q. So how many hours a week would that be?
A. That was—I put in at least 20 to 25 hours a week.
Based upon the deposition responses, Defendants made a Motion for Summary Judgment, contending Dr. Dunn's expert witness testimony could not support a malpractice claim under Rule 9(j) of the North Carolina Rules of Civil Procedure and Rule 702 of the Rules of Evidence. Plaintiff then filed a motion under Rule 702(e), requesting that even if Dr. Dunn does not meet the Rule 702 requirements, he be recognized as an expert. Plaintiff also filed an affidavit by Dr. Dunn clarifying that in his deposition testimony, he stated that he spent one hundred percent of his professional time in the clinical practice of dentistry and that any other activities were personal, not professional.
Following the hearing on these motions, the trial court made two rulings. In the first ruling, the trial court granted summary judgment in favor of Defendants and dismissed Plaintiff's Complaint, stating Plaintiff did not comply with Rule 9(j), as no reasonable person would have expected Dr. Dunn to qualify as an expert witness under Rule 702. In the second ruling, the trial court ruled that no extraordinary circumstances existed to qualify Dr. Dunn to serve as an expert witness under Rule 702(e). We note that Defendants did not move to strike Dr. Dunn as an expert witness or to disqualify him pursuant to a motion in limine.
This Court has jurisdiction of this appeal pursuant to N.C. Gen.Stat. § 7A–27(b) (2009).
Rule 9(j) of the N.C. Rules of Civil Procedure and Rule 702 of the Rules of Evidence provide the statutory framework for resolving this dispute. It is undisputed in this controversy that Dr. Dunn was a licensed dental professional who had extensive experience treating patients, that he did not provide instruction for students at a professional school or clinic, that he was prepared to offer testimony that Dr. Proper did not provide medical care which complied with the applicable standard of care, and that he practiced in the same specialty as Dr. Proper.
The portions of Rule 9(j) relevant to this controversy read 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;
(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...
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