1. Medical Malpractice_initial filing without Rule 9(j) certification_voluntary
dismissal and refiling with certification_statute of limitations_no relation back
Plaintiff's medical malpractice claims were properly dismissed under N.C.G.S. § 1A-1,
Rule 12(b)(6) where plaintiff's initial complaint did not have a Rule 9(j) certification; plaintiff
took a voluntary dismissal and later refiled with the requisite certification after the statute of
limitations had expired; and the complaints were dismissed for violation of the statute of
limitations. Plaintiff's last complaint should not be permitted to relate back to the original; the
original was not properly filed, as it failed to comply with Rule 9(j) and did not suffice to toll the
statute of limitations.
2. Civil Procedure_voluntary dismissal and refiling_changing constitutional rulings
A plaintiff was required to comply with Rule 9(j) in refiling a medical malpractice action
after a voluntary dismissal where the original complaint was controlled by the Court of Appeals
holding that Rule 9(j) is unconstitutional, but the N.C. Supreme Court had vacated that ruling by
the time plaintiff took the voluntary dismissal.
Hollowell, Mitchell, Eyster & Warner, P.A., by Joseph T.
Copeland and Joan M. Mitchell, for plaintiff-appellant.
Hunton & Williams LLP, by Frank E. Emory, Jr. and Brent A.
Rosser, for Duke University Medical Center, Duke University
Health Systems, Inc., Duke Hospital, Duke University, and
Thomas A. D'Amico, M.D., defendants-appellees.
Sharpless & Stavola, P.A., by Joseph P. Booth, III, for
Broadhead Family Practice, P.C., and ARMC Primary Care, Inc.
d/b/a Yanceyville Family Practice of Alamance Regional Medical
Center f/k/a Broadhead Family Practice, P.C., defendants-
appellees.
Carruthers & Roth, P.A., by Kenneth L. Jones, for Yvette
Douglas-Lewis, M.D., defendants-appellees.
JACKSON, Judge.
On 15 March 2002, the estate of Vicky Barksdale (“plaintiff”)
filed a complaint alleging defendants failed to timely diagnose and
treat Vicky Barksdale's recurrence of cancer, and failed to treat
her with proper palliative care once the recurrence was discovered.
Vicky Barksdale passed away on 18 March 2000 as a result of the
recurrence of cancer. Defendants listed in the complaint included:
Duke University Medical Center, Duke University Health System,
Inc., Duke Hospital, Duke University, and Thomas A. D'Amico, M.D.
(collectively “Duke defendants”); Broadhead Family Practice, P.C.,
ARMC Primary Care, Inc., d/b/a Yanceyville Family Practice of
Alamance Regional Medical Center, f/k/a Broadhead Family Practice,
P.C. (collectively “Broadhead defendants”); and Yvette Douglas-
Lewis, M.D. (“defendant Douglas-Lewis”).
Plaintiff's initial complaint filed in March 2002 did not
contain a Rule 9(j) certification nor any allegation showing that
her estate had standing to institute an action pursuant to North
Carolina General Statutes, section 1A-1, Rule 17(a) and sections
28A-18-1 and -2. Plaintiff amended her initial complaint twice to
include an allegation stating that her estate had standing to sue.
Neither of the amendments included the requisite Rule 9(j)
certification.
On 9 December 2002, plaintiff voluntarily dismissed her
initial complaint pursuant to North Carolina General Statutes,section 1A-1, Rule 41(a). Plaintiff re-filed the same action
against all defendants on 19 November 2003, in a complaint
containing the requisite Rule 9(j) certification. On 5 February
2004, Duke defendants answered plaintiff's complaint and asserted
that it should be dismissed because it failed to comply with Rule
9(j) and that it was time barred by the statute of limitations.
Duke defendants filed a motion to dismiss on 9 June 2004, and the
matter was heard on 12 July 2004. The trial court entered an order
on 16 July 2004 granting Duke defendants' motion and dismissing
plaintiff's case against Duke defendants with prejudice. In
dismissing plaintiff's complaint, the trial court held that
plaintiff failed to comply with Rule 9(j) when she initially filed
her complaint, and that the certification in the November 2003
complaint occurred after the three-year medical malpractice statute
of limitations had run.
Broadhead defendants and defendant Douglas-Lewis filed motions
to dismiss on 21 and 26 July 2004 respectively, and their motions
were granted on 22 September 2004. Plaintiff appeals from the
orders ruling that her claims against all defendants were barred by
the statute of limitations.
[1] Plaintiff contends the trial court erred in dismissing her
complaint pursuant to Rule 12(b)(6) of the North Carolina Rules of
Civil Procedure, and that her action was not time barred by the
statute of limitations.
A motion to dismiss based on Rule 12(b)(6) should be granted
when the plaintiff has failed “to state a claim upon which reliefcan be granted.” N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2004). A
defendant may raise the defense of statute of limitations in a Rule
12(b)(6) motion to dismiss “if it appears on the face of the
complaint that such a statute bars the claim.” Hargett v. Holland,
337 N.C. 651, 653, 447 S.E.2d 784, 786 (1994). Once a defendant has
raised this defense, the burden shifts to the plaintiff to show
that the action was instituted within the prescribed period.
Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329
S.E.2d 350, 353 (1985). “A plaintiff sustains this burden by
showing that the relevant statute of limitations has not expired.”
Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 136, 472 S.E.2d
778, 780 (1996).
North Carolina General Statutes, section 1-15(c) (2004),
provides that a claim for malpractice arising out of the
“performance of or failure to perform professional [medical]
services shall be deemed to accrue . . . [upon] the occurrence of
the last act of the defendant giving rise to the cause of action.”
A plaintiff has three years from that date within which to bring
suit. Id.
Upon commencing a medical malpractice action in North
Carolina, plaintiffs must plead specifically that their alleged
improper medical care has been reviewed by an expert who is willing
to testify that the medical care provided to plaintiff “fail[ed] to
comply with the applicable standard of care.” N.C. Gen. Stat. §
1A-1, Rule 9(j) (2004). North Carolina General Statutes, section
1A-1, Rule 9(j) (2004) provides: 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 common-law
doctrine of res ipsa loquitur.
Upon motion by the complainant prior to the
expiration of the applicable statute of
limitations, a resident judge of the superior
court for a judicial district in which venue
for the cause of action is appropriate . . .
may allow a motion to extend the statute of
limitations for a period not to exceed 120
days to file a complaint in a medical
malpractice action in order to comply with
this Rule, upon a determination that good
cause exists for the granting of the motion
and that the ends of justice would be served
by an extension.
Per Rule 9(j), plaintiffs may extend the three-year statute of
limitations for an additional 120 days upon motion, in order to
allow them additional time to comply with the Rule 9(j)
certification requirement. A plaintiff may take a voluntary dismissal of his or her
action without prejudice pursuant to North Carolina General
Statutes, section 1A-1, Rule 41(a) (2004). Rule 41(a) allows a
plaintiff who has commenced an action “within the time prescribed
therefor,” and who takes a voluntary dismissal without prejudice,
to commence a new action on the same claim within one year of the
voluntary dismissal. N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2004);
Bass v. Durham County Hosp. Corp., 158 N.C. App. 217, 223, 580
S.E.2d 738, 742 (2003), rev'd, 358 N.C. 144, 592 S.E.2d 687 (2004)
(Supreme Court reversed Court of Appeals decision and adopted
dissenting opinion). When taking a voluntary dismissal without
prejudice, a plaintiff always will have the remaining time
prescribed under the applicable statute of limitations, and also
will have an additional year as provided by Rule 41(a)(1).
Whitehurst v. Virginia Dare Transp. Co., 19 N.C. App. 352, 356, 198
S.E.2d 741, 743 (1973). The effect of Rule 41 is that 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.'” Brisson v. Kathy
A. Santoriello, M.D., P.A., 351 N.C. 589, 594, 528 S.E.2d 568, 571
(2000) (quoting Clark v. Visiting Health Prof'ls, Inc., 136 N.C.
App. 505, 508, 524 S.E.2d 605, 607, disc. review denied, 351 N.C.
640, 543 S.E.2d 867 (2000)).
The issue before us is whether Plaintiff's complaint filed in
November 2003 should be permitted to relate back to her originalcomplaint filed in March 2002 for purposes of the statute of
limitations.
Our courts have addressed the interplay of Rule 9(j) and
voluntary dismissals under Rule 41(a) in several cases. Bass v.
Durham County Hosp. Corp., 158 N.C. App. 217, 580 S.E.2d 738 (2003)
involved a plaintiff who commenced a medical malpractice action on
the last day of the 120-day extension, and whose complaint failed
to comply with the Rule 9(j) certification requirement. The
plaintiff later dismissed her claims pursuant to Rule 41(a), and
refiled her complaint within the one year. Our Supreme Court
reversed this Court's holding in Bass, and upheld the dissent in
that case. Based upon the dissent, the holding in Bass provides
that when an original complaint is filed after the original statute
of limitations and the 120-day extension both have expired, and it
fails to comply with the Rule 9(j) certification requirement, the
complaint is “not 'commenced within the time prescribed therefor'”
based on the failure to comply with the rule. Id. at 223, 580
S.E.2d at 742. The Court went on to hold that “[a] Rule 41(a)
voluntary dismissal would salvage the action and provide another
year for re-filing had plaintiff filed a complaint complying with
Rule 9(j) before the limitations period expired.” Id. at 225, 580
S.E.2d at 743. In Bass, the plaintiff's complaint was untimely
filed based on the fact that her initial action, although filed
within the statute of limitations and 120-day extension time frame,
failed to comply with the Rule 9(j) certification requirements, and
thus, for purposes of the statute of limitations, her subsequentfiling could not relate back to the date of the initial
commencement of the action.
In Thigpen v. Ngo, 355 N.C. 198, 205, 558 S.E.2d 162, 167
(2002), our Supreme Court held that “once a party receives and
exhausts the 120-day extension of time in order to comply with Rule
9(j)'s expert certification requirement, the party cannot amend a
medical malpractice complaint to include expert certification.”
The Court continued to hold that “Rule 9(j) expert review must take
place before the filing of the complaint.” Id. In reaching its
decision, the Court considered our legislature's intent in drafting
Rule 9(j), and the purpose of the rule itself. The Court stated:
The legislature specifically drafted Rule 9(j)
to govern the initiation of medical
malpractice actions and to require physician
review as a condition for filing the action.
The legislature's intent was to provide a more
specialized and stringent procedure for
plaintiffs in medical malpractice claims
through Rule 9(j)'s requirement of expert
certification prior to the filing of a
complaint. Accordingly, permitting amendment
of a complaint to add the expert certification
where the expert review occurred after the
suit was filed would conflict directly with
the clear intent of the legislature.
Id. at 203-04, 558 S.E.2d at 166.
In Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589,
528 S.E.2d 568 (2000), our Supreme Court addressed the situation in
which a plaintiff failed to comply with the Rule 9(j) certification
requirement. In Brisson, the plaintiffs took a voluntary dismissal
per Rule 41(a), and re-filed their action within one year of the
expiration of the statute of limitations. No 120-day extension was
involved. The court in Brisson held that the proposed amendedcomplaint was filed within the one-year extension granted by Rule
41(a), and thus should have been allowed. Id. at 597, 528 S.E.2d
at 573.
While neither the plaintiffs in Brisson nor the present case
sought the 120-day extension, the facts of the present case are
distinguishable from those in Brisson. With respect to Duke
defendants, plaintiff's last date of injury was 10 March 2000, and
the three-year statute of limitations ran on 10 March 2003. Had
plaintiff filed a motion seeking the 120-day extension, the statute
of limitations would have been extended to 8 July 2003. With
respect to defendant Douglas-Lewis and Broadhead defendants,
plaintiff's last date of injury was 13 July 1999, and the three
year-statute of limitations expired 13 July 2002. Had plaintiff
filed a motion seeking the 120-day extension, the statute of
limitations would have been extended to 11 November 2002, which was
Veteran's Day, thus the extension would have run on Tuesday, 12
November 2002. Plaintiff recommenced the civil action as to all
defendants on 19 November 2003 _ clearly beyond the statute of
limitations and 120-day extensions in each case.
In the instant case, plaintiff admits that the initial
complaint failed to contain the required certification. In
addition, plaintiff's responses to defendants' Rule 9
interrogatories state that all of the expert witnesses who reviewed
the medical care rendered by defendants did so in January or
February 2003, well after the filing of the initial complaint in
March 2002. Thus, there was no expert review prior to thecommencement of the original action, which our Supreme Court has
held would be contrary to the legislature's intent in enacting Rule
9(j). See Thigpen, 355 N.C. at 203-04, 558 S.E.2d at 166 (“The
legislature's intent was to provide a more specialized and
stringent procedure for plaintiffs in medical malpractice claims
through Rule 9(j)'s requirement of expert certification prior to
the filing of a complaint.”).
The effects of a Rule 41(a) voluntary dismissal are well-
settled in our state. “'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.'” Brisson, 351 N.C.
at 593, 528 S.E.2d at 570 (quoting Walker Frames v. Shively, 123
N.C. App. 643, 646, 473 S.E.2d 776, 778 (1996)). A Rule 41(a)
voluntary dismissal “'leave[s] the plaintiff exactly where he [or
she] was before the action was commenced.'” Id. (quoting Gibbs v.
Carolina Power & Light Co., 265 N.C. 459, 464, 144 S.E.2d 393, 398
(1965)). Once a court has granted 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.'” Id.
(quoting Universidad Cent. Del Caribe, Inc. v. Liaison Comm. on
Med. Educ., 760 F.2d 14, 18 n.4 (1st Cir. 1985)).
When plaintiff took her voluntary dismissal in December 2002,
she was left in the same position she would have been in had she
never commenced the civil action in the first place. She would
have been left with the remaining portion of the statute oflimitations with regards to her claims against Duke defendants.
However, at the point at which she took the voluntary dismissal,
the statute of limitations, along with any potential 120-day
extension, had run with respect to her claims against Broadhead
defendants and defendant Douglas-Lewis. In addition, her original
complaint was not properly filed, as it failed to comply with Rule
9(j), and thus it did not suffice to toll the statute of
limitations with regards to any of her claims.
Therefore, based on the precedents in Brisson and Bass, we
hold that since plaintiff failed to file a complaint in compliance
with the requirements of Rule 9(j) within the prescribed statute of
limitations, or within the time which would have been allowed had
a 120-day extension been sought, plaintiff's complaint filed 18
November 2003 was not timely filed. Thus the trial court acted
properly in granting defendants' motions to dismiss.
[2] Plaintiff also asserts that at the time the original
complaint was filed in March 2002, it was not required to comply
with Rule 9(j) based on our holding in Anderson v. Assimos, 146
N.C. App. 339, 553 S.E.2d 63 (2001), vacated in part and appeal
dismissed, 356 N.C. 415, 572 S.E.2d 101 (2002), and therefore the
original complaint should be found to have been timely filed such
that the statute of limitations was tolled.
Our opinion in Anderson v. Assimos, filed 2 October 2001, held
that Rule 9(j) was unconstitutional and void, and therefore
plaintiffs were not obligated to meet the pleading requirements of
Rule 9(j). Anderson, 146 N.C. App. at 346, 553 S.E.2d at 69. On22 November 2002, the Supreme Court vacated our ruling in Anderson,
to the extent that we concluded Rule 9(j) was unconstitutional.
Anderson, 356 N.C. at 417, 572 S.E.2d at 103. Our original ruling
in Anderson was controlling in plaintiff's case at the time the
original complaint was filed, however, so plaintiff was not
required to comply with Rule 9(j) at that time. However, the
Supreme Court's decision was filed prior to plaintiff's taking a
voluntary dismissal on 9 December 2002. Once the Supreme Court's
decision became controlling, plaintiff was required to comply with
the Rule 9(j) requirements, and had the opportunity to amend its
complaint to include the Rule 9(j) certification, and to have the
amendment relate back to the original filing date. See Rupe v.
Hucks-Follis, 170 N.C. App. 188, 611 S.E.2d 867 (2005). Plaintiff
failed to do so. We therefore do not find plaintiff's argument to
be persuasive, and hold that plaintiff was required to comply with
the Rule 9(j) certification requirement.
Because we find plaintiff's complaint filed 18 November 2003
was not timely filed within the applicable statute of limitations,
we hold the trial court did not err in dismissing plaintiff's
claims pursuant to Rule 12(b)(6).
Affirmed.
Judges McGEE and McCULLOUGH concur.
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