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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
PAULA WINEBARGER, as Executrix of the Estate of Betty Ann Rogers
v. CELESTE V. PETERSON, D.O.
NO. COA 06-734
Filed: 3 April 2007
1. Medical Malpractice--Rule 9(j) certification--voluntary dismissal does not toll
statute of limitations when admit expert consulted after filing original complaint
The trial court did not err in a medical malpractice case by granting summary judgment in
favor of defendant based on plaintiff's failure to comply with N.C.G.S. § 1A-1, Rule 9(j)
certification requirements and the expiration of the statute of limitations, because: (1) an
N.C.G.S. § 1A-1, Rule 41(a) voluntary dismissal does not toll the statute of limitations where the
plaintiff admits the expert was consulted after the filing of the original complaint; and (2)
plaintiff admitted the allegation in the complaint was ineffective to meet the requirements set out
in Rule 9(j), and thus, a voluntary dismissal without prejudice which ordinarily would allow for
another year for refiling was unavailable to plaintiff in this case.
2. Appeal and Error--preservation of issues--failure to raise constitutional issue at trial
Although plaintiff challenges the constitutionality of N.C.G.S. § 1A-1, Rule 9(j) on
appeal, this argument is dismissed because the record fails to show that plaintiff presented this
argument to the trial court.
Appeal by Plaintiff from judgment entered 21 December 2005 by
Judge James L. Baker, Jr., in Superior Court, Avery County. Heard
in the Court of Appeals 6 March 2007.
Hall & Hall Attorneys at Law, P.C., by Douglas L. Hall, for
Shumaker, Loop, & Kendrick, LLP., by Scott M. Stevenson and
Robert E. Sumner, IV, for Defendant-Appellee.
In Thigpen v. Ngo,
(See footnote 1)
our Supreme Court held that dismissal of
a medical malpractice complaint is mandatory if plaintiff fails to
comply with the Rule 9(j)
(See footnote 2)
expert certification mandate. The issuein this case is whether a Rule 41(a)
(See footnote 3)
voluntary dismissal tolls the
statute of limitations where the plaintiff admits the expert was
consulted after the filing of the original complaint. For the
reasons given in
and Robinson v. Entwistle
(See footnote 4)
we hold that
the Rule 41(a) dismissal did not toll the statute of limitations;
accordingly, we uphold summary judgment for Defendant.
This action arises from the filing of a complaint on 24 April
2003 by Paula Winebarger as the Executrix of the Estate of Betty
Ann Rogers (Plaintiff). The complaint alleged that Ms. Rogers
died on 26 April 2001 as a result of the medical malpractice of Dr.
Celeste Peterson (Defendant). In compliance with Rule 9(j) of
the Rules of Civil Procedure, the complaint stated: The medical care provided to Rogers has been
reviewed by a person 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 did not comply with
applicable standard of care.
On 2 September 2003, Defendant served Plaintiff with
interrogatories to ensure compliance with Rule 9(j). On 2 December
2003, Plaintiff responded naming Dr. Terry M. Reznick, D.O., P.C.,
as the medical expert engaged to provide an opinion on the death
of Mrs. Betty Rogers. Plaintiff stated that Dr. Reznick was first
contacted on 12 November 2003.
On 8 December 2003, Defendant filed a Motion for Summary
Judgment alleging that Plaintiff's complaint filed on 24 April
2003 failed to comply with Rule 9(j) because Plaintiff's expert was
not contacted until 12 November 2003. On 6 February 2004,
Plaintiff took a Voluntary Dismissal of her action without
prejudice under Rule 41 of the Rules of Civil Procedure.
On 4 February 2005, Plaintiff re-filed the medical malpractice
against Defendant again alleging in compliance with Rule 9(j) that
the matter had been reviewed by an expert. On 18 April 2005,Defendant again filed a Motion for Summary Judgment
(See footnote 5)
[t]he statute of limitations in the case at
bar expired on April 26, 2003. Since
Plaintiff did not comply with the expert
certification required by Rule 9(j) at the
time she first filed this action on April 24,
2003, she is now barred by the statute of
limitations from refiling this matter against
the Defendant. A Plaintiff cannot cure her
original complaint's lack of expert
certification after the statute of limitations
has expired by dismissing the case and
refiling within one year.
Thereafter, Defendant served interrogatories to determine
Plaintiff's compliance with Rule 9(j). In response, on 1 July
2005, Plaintiff again named her expert witnesses, Dr. Terry Michael
Reznick, D.O., who was first contacted on 12 November 2003.
Plaintiff also filed several Affidavits in Opposition of Summary
Judgment along with additional evidence. The trial court heard the
Motion for Summary Judgment on 30 November 2005 and on 21 December2005, granted summary judgment in favor of Defendant. Plaintiff
 Plaintiff first argues that the trial court erred by
granting summary judgment in favor of Defendant because her Rule
41(a) voluntary dismissal tolled the statute of limitations even
though she admitted in discovery that the expert was consulted
after the filing of the original complaint. We must disagree.
In Thigpen v. Ngo,
our Supreme Court confirmed the mandatory
nature of Rule 9(j).
355 N.C. at 204, 558 S.E.2d at 166.
In that case,
the plaintiff obtained a Rule 9(j) 120-day extension
of the statute of limitations; and, on the final day of the
extended deadline, 6 October 1999, filed a complaint without the
Rule 9(j) certification. Six days later, 12 October 1999, the
plaintiff filed an amended complaint including the Rule 9(j)
certification. The trial court granted the defendants' motions to
dismiss holding that the original complaint did not contain a
certification complying with Rule 9(j).
Our Supreme Court upheld the trial court's decision holding
that, under the
rules of statutory construction, dismissal of
plaintiff's complaint was mandatory.
Rule 9(j) clearly provides that any
alleging medical malpractice . . . shall
dismissed if it does not comply with the
certification mandate. Contrary to the
holding of the Court of Appeals, we find the
inclusion of shall be dismissed Rule 9(j) to
be more than simply a choice of grammatical
at 202, 558 S.E.2d at 165 (internal quotations omitted).
Court held that an amended complaint must allege that review
of the medical care in a medical malpractice action took place
before the filing of the original complaint satisfies the
requirements of Rule 9(j). Id.
at 204, 558 S.E.2d at 166.
Court concluded that the record must show that plaintiff alleged
the review occurred before the filing of the original complaint.
But see, Brisson v. Santoriello
, 351 N.C. 589, 528 S.E.2d 568
(See footnote 6)
The facts of this case are nearly on point with the prior
decision of this Court in Robinson v. Entwistle
, 132 N.C. App. 519,
522, 512 S.E.2d 438, 441, disc
. review denied,
350 N.C. 595, 537
S.E.2d 482 (1999).
In that case, the plaintiff filed a medical
malpractice action on 30 August 1996 without the required Rule 9(j)
certification. On 28 October 1996, before the defendant filed
responsive pleadings, the plaintiff amended the complaint to
include a certification under Rule 9(j) that medical care has been
reviewed by a person who is reasonably expected to qualify as an
expert witness under Rule 702 of the Rule of Evidence. . .. N.C.
Gen. Stat. § 1A-1, Rule 9(j)(1) (2003). However, the plaintifflater admitted in discovery that the medical expert did not qualify
as an expert under Rule 702(b)(2). This Court stated: 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 filing to toll the
statute of limitations. Robinson,
132 N.C. App. at 523, 512
S.E.2d at 441. Thus, this Court held that the Rule 41(a) dismissal
did not toll the statute of limitations.
Here, Plaintiff filed a complaint on 24 April 2003 containing
the required Rule 9(j) certification but later admitted in
discovery that she had not consulted with her Rule 9(j) expert
until 12 November 2003, nearly seven months after the filing of her
(See footnote 7)
Thereafter on 6 February 2004, Plaintiff dismissed her
action under Rule 41(a) and re-filed the action on 4 February 2005.
As in Robinson,
we must hold that [b]ecause plaintiff admitted the
allegation in the [complaint] was ineffective to meet the
requirements set out in Rule 9(j) . . . a voluntary dismissal
without prejudice which ordinarily would allow for another year for
refiling was unavailable to plaintiff in this case. Id.
For the reasons given in Thigpen
we affirm the
trial court's grant of summary judgment in favor of Defendant.
 Regarding Plaintiff's challenge to the constitutionality
of Rule 9(j), we must hold that the record fails to show that
Plaintiff presented this argument to the trial court.
A constitutional issue not raised at trial will . . . not be
considered for the first time on appeal. Anderson v. Assimos
N.C. 415, 416, 572 S.E.2d 101, 102 (2002) (citation omitted).
Moreover, a constitutional question is addressed only when the
issue is squarely presented upon an adequate factual record and
only when resolution of the issue is necessary. Furthermore,
[t]o be properly addressed, a constitutional issue must be
definitely drawn into focus by plaintiff's pleadings. Id.
quotations and citations omitted). If the factual record
necessary for a constitutional inquiry is lacking, an appellate
court should be especially mindful of the dangers inherent in the
premature exercise of its jurisdiction. Id.
at 416-17, 572 S.E.2d
at 102 (citations omitted).
Here, while the trial court specifically found that it does
not accept Plaintiff's contention that Rule 9(j) is
nothing in the record nor in the transcript
provided as a part of the record indicates that Plaintiff raised
this issue at trial. Thus, the factual record necessary for a
constitutional inquiry is lacking. Because this issue is not
properly before this Court, we dismiss this assignment of error.
Affirmed in part, dismissed in part.
Judges STEELMAN and JACKSON concur.
Thigpen v. Ngo
, 355 N.C. 198, 205, 558 S.E.2d 162, 167
N.C.G.S. § 1A-1, Rule 9(j)(1) states:
[a]ny complaint alleging medical malpracticeby 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. . .. N.C. Gen.
Stat. § 1A-1, Rule 9(j)(1) (2003).
N.C.G.S. § 1A-1, Rule 41(a)(1) states:
an action or any claim therein may be
dismissed by the plaintiff without order of
court. . . by filing a notice of dismissal at
any time before the plaintiff rests his case.
If an action commenced within the time
prescribed therefor, or any claim therein, is
dismissed without prejudice under this
subsection, a new action based on the same
claim may be commenced within one year after
Robinson v. Entwistle
, 132 N.C. App. 519, 522, 512 S.E.2d
438, 441, disc. review denied,
350 N.C. 595, 537 S.E.2d 482 (1999)
On 3 June 2005, Defendant gave Notice of Withdrawal of
Defendant's Motion for Summary Judgment, and on 26 October 2005,
re-filed a Motion for Summary Judgment alleging the same basis as
set forth in its earlier motion with the additional reasoning that
Plaintiff, by her own admission,
misrepresented that she had complied with Rule
9(j) at the time she filed the original
Complaint . . . Plaintiff cannot misrepresent
compliance with Rule 9(j) in the original
Complaint, file a voluntary dismissal pursuant
to Rule 41, and then cure her original lack of
expert review after the statute of limitations
has expired by re-filing within one year. To
permit Plaintiff's conduct is directly
contrary to the mandatory provisions of Rule
9(j). . ..
the plaintiff brought a medical malpractice
action on 3 June 1997 but failed to include a Rule 9(j)
certification prompting the defendant to move for dismissal of the
action. In response, the plaintiff moved to amend the complaint to
include the Rule 9(j) certification and, alternatively, for
dismissal under Rule 41(a). On 6 October 1997, the trial court
denied the motion to amend but reserved ruling on the defendant's
motion to dismiss. That same day, the plaintiff took a Rule 41(a)
dismissal, and three days later, refiled the action with the proper
certification. Our Supreme Court held that the dismissal under
Rule 41(a) effectively extended the statute of limitations.
In affidavits submitted to the trial court, Plaintiff alluded
to efforts to obtain other expert opinions including Arthur Fine,
M.D. whom Plaintiff contended she consulted before the filing of
the original complaint. However, Plaintiff's response to
Defendant's interrogatories following the filing of each complaint,
identified only Dr. Reznick as her Rule 9(j) expert witness, and
further, admitted that Dr. Reznick was not contacted until 12
November 2003, nearly seven months after the filing of the original
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