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Medical Malpractice--medical review before filing--allegation
ineffective--statute of limitations not tolled
The trial court correctly granted summary judgment for
defendants based upon the statute of limitations in a medical
malpractice action where the original complaint did not contain
the allegations of expert review required by Rule 9(j), an
allegation in an amendment was ineffective to meet the
requirements of Rule 9(j) and that amendment thus cannot relate
back to the original filing to toll the statute of limitations,
and a voluntary dismissal without prejudice which ordinarily
would allow another year for refiling was unavailable in this
case.
Appeal by plaintiff from judgment entered 9 December 1997 by
Judge James C. Davis in Cabarrus County Superior Court. Heard in
the Court of Appeals 6 January 1999.
Wells & Daisley, P.A., by Jameson P. Wells, for plaintiff-
appellant.
Cozen and O'Connor, by Paul A. Reichs, Kimberly Sullivan and
Garrett J. McAvoy, for defendant-appellee Eslie Rolland
Phillips, III; and Kurdys & Lovejoy, P.A., by Mark C. Kurdys
and Jeffrey S. Bolster, for defendant-appellee Celia
Entwistle.
WALKER, Judge.
The decedent, William J. Robinson, Sr., died on 18 August
1994. On 12 August 1996, plaintiff initiated a medical
malpractice action by filing a civil summons along with an order
extending time to file her complaint. The order extended the
statute of limitations for the filing of the lawsuit until 1
September 1996. On 30 August 1996, plaintiff filed a complaint
alleging negligence on the part of the defendants, but it did not
contain allegations that the medical care had been reviewed by an
expert as required by Rule 9(j) for medical malpractice actions.
Before the defendants filed responsive pleadings, plaintiff
amended her complaint to include a paragraph which purported to
comply with Rule 9(j). Later, on 21 April 1997, plaintiff
dismissed the amended complaint without prejudice pursuant toRule 41(a)(1).
On 6 June 1997, plaintiff re-filed this medical malpractice
action. Both defendants answered the complaint and filed motions
to dismiss for failure to comply with Rule 9(j), for judgment on
the pleadings pursuant to Rule 12(c), and for summary judgment.
The trial court denied the Rule 12(c) motions having considered
evidence beyond the pleadings and denied the motions to dismiss
for failure to comply with Rule 9(j) finding that the second
complaint complied with the requirements set out in the rule.
However, the trial court granted the motions for summary judgment
in favor of the defendants and found that the statute of
limitations had expired for the initiation of the action.
The trial court made the following findings of fact and
conclusions of law:
5. That the August 30, 1996 complaint filed
by the plaintiff did not comply with Rule
9(j) of the North Carolina Rules of Civil
Procedure because it did not allege that the
medical care had been reviewed by an expert
who was reasonably expected to qualify as an
expert under Rule 702 and who was willing to
testify that the medical care did not comply
with the applicable standard of care, it did
not assert that the medical care had been
reviewed by a person that the complainant
would seek to have qualified as an expert
witness by motion under Rule 702(e) and who
was willing to testify that the medical care
did not comply with the applicable standard
of care, and it did not allege facts
establishing negligence under the common lawdoctrine of res ipsa loquitur.
6. That on October 28, 1996, the plaintiff
filed an amendment to the August 30, 1996,
complaint alleging that the medical care of
the plaintiff had been reviewed by Dr. Read,
a vascular surgeon, who was willing to
testify that the medical care did not comply
with the applicable standard of care.
7. Dr. Read did not qualify as an expert
under Rule 702 of the North Carolina Rules of
Evidence to testify as to the standard of
care applicable to emergency room physicians.
9. That on April 21, 1997, the plaintiff
voluntarily dismissed the action commenced by
the August 30, 1996 complaint because Dr.
Read's review of the medical care of William
J. Robinson, Sr. did not meet the pleading
requirements of Rule 9(j) of the North
Carolina Rules of Civil Procedure.
10. The plaintiff did not have William J.
Robinson, Sr.'s medical care reviewed by an
expert who qualifies under Rule 702 of the
North Carolina Rules of Evidence until more
than two years after William J. Robinson,
Sr.'s death.
CONCLUSIONS OF LAW
1. That the two-year statute of limitations
for wrongful death actions applies to this
case and began to run on August 19, 1994, the
date of William J. Robinson, Sr.'s death.
2. That the statute of limitations
applicable to this case was extended through
September 1, 1996, by application of the
plaintiff.
3. That the complaint filed by the plaintiff
on August 30, 1996, was not properly
instituted because it did not conform to the
pleading requirements set forth in Rule 9(j)
of the North Carolina Rules of Civil
Procedure; therefore the August 30, 1996
complaint did not toll the statute of
limitations.
4. That the Amendment to the initial
complaint filed by the plaintiff on or about
October 28, 1996, did not remedy this defect
because it alleged that the medical care was
reviewed by an expert who did not qualify
under Rule 702 to testify as to the standard
of care applicable to the defendants in this
action.
5. Because the original complaint did not
toll the statute of limitations and did not
provide the basis for a one year extension by
way of a Rule 41(a)(1) Voluntary Dismissal
Without Prejudice, the second complaint filed
by the plaintiff on June 6, 1997, was filed
after expiration of the statute of
limitations and therefore is subject to
dismissal on the grounds that the action is
time barred.
The sole issue in this case is whether the trial court erred
in granting summary judgment on behalf of the defendants because
the plaintiff's action was barred by the statute of limitations.
Plaintiff contends that Rule 41(a)(1) allows a plaintiff to
dismiss an action without prejudice and re-file it within one
year so long as the original action was filed in a timely manner.
Defendants argue that all pleading requirements must be met by
the original complaint to toll the statute of limitations andthat if the statute of limitations was not tolled, a Rule 41
voluntary dismissal is unavailable to allow an additional year
for the action to be re-filed.
Rule 9(j) requires that complaints alleging medical
malpractice against a health care provider specifically allege
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 that [the expert] is willing to
testify that the medical care did not comply with the applicable
standard of care.” Trapp v. Maccioli, 129 N.C. App. 237, 239-40,
497 S.E.2d 708, 710, disc. review denied, 348 N.C. 509, 510
S.E.2d 672 (1998); See N.C. Gen. Stat. § 1A-1, Rule 9(j)(Cum.
Supp. 1997).
As our Supreme Court has stated, “in order for a timely
filed complaint to toll the statute of limitations and provide
the basis for a one-year 'extension' by way of a Rule 41(a)(1)
voluntary dismissal without prejudice, the complaint must conform
in all respects to the rules of pleading.” Estrada v. Burnham,
316 N.C. 318, 323, 341 S.E.2d 538, 542 (1986); See Johnson v.
City of Raleigh, 98 N.C. App. 147, 389 S.E.2d 849, disc. review
denied, 327 N.C. 140, 394 S.E.2d 176 (1990). In Estrada, our
Supreme Court held that where a complaint failed to comply with
Rule 11(a) at the time it was filed, it did not toll the statuteof limitations. Estrada, 316 N.C. 318, 341 S.E.2d 538. Rule
41(a) was not available to the plaintiff in that action to allow
him to dismiss and re-file again within one year because the
original statute of limitations had not been met. Id. Likewise,
in Johnson, 98 N.C. App. 147, 389 S.E.2d 849, this Court held
that Rule 41(a) was not available to a plaintiff who failed to
obtain proper service of process pursuant to Rule 4 prior to the
time the statute of limitations expired. Thus, Rule 41(a)(1) is
only available in an action where the complaint complied with the
rules which govern its form and content prior to the expiration
of the statute of limitations.
In this case, although the original complaint was timely
filed, both the original complaint and the amendment failed to
comply with Rule 9(j). The amendment contained an allegation
that Dr. Read had reviewed the records and was prepared to
testify; however, plaintiff later admitted in discovery that Dr.
Read would not qualify as an expert under Rule 702(b)(2) because
he had not practiced as an emergency physician during the year
prior to the occurrence which is the basis of this action. See
N.C. Gen. Stat. § 8C-1, Rule 702(b)(2)(Cum. Supp. 1997). Because
plaintiff admitted the allegation in the amendment was
ineffective to meet the requirements set out in Rule 9(j), that
amendment cannot relate back to the time of the original filingto toll the statute of limitations. Thus, a voluntary dismissal
without prejudice which ordinarily would allow for another year
for re-filing was unavailable to plaintiff in this case.
For these reasons, we must affirm the trial court's granting
of summary judgment in favor of the defendants in that this
action was not properly filed before the statute of limitations
expired.
Affirmed.
Judges LEWIS and TIMMONS-GOODSON concur.
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