Appeal by plaintiff from judgment entered 3 November 2006 by
Judge W. Russell Duke, Jr., in Wilson County Superior Court. Heard
in the Court of Appeals 15 October 2007.
D. Lynn Whitted for plaintiff appellant.
Helms Mulliss & Wicker, PLLC, by Keith P. Anthony, for Dr.
Karen Kinney defendant appellee.
Cranfill, Sumner & Hartzog, LLP, by David W. Ward and Jaye E.
Bingham, for Dr. Mark Newell defendant appellee.
McCULLOUGH, Judge.
Appeal by plaintiff from judgment entered 3 November 2006 by
Judge W. Russell Duke, Jr., in Wilson County Superior Court. Heard
in the Court of Appeals 15 October 2007.
FACTS
The record on appeal tends to show the following facts:
Plaintiff's husband, Toby R. Knox, was injured in a motor vehicle
accident on 21 December 2003. Mr. Knox was transported to Wilson
Medical Center for treatment of his injuries. Due to the extent of
Mr. Knox's injuries, he was then transferred to the trauma center
in Pitt County Memorial Hospital (“Hospital”) for further
treatment.
On 25 December 2003, Mr. Knox's temperature was recorded at
37.9 degrees Celsius (100.22 degrees Fahrenheit). In response, the
examining nurse noted the possibility of an infection and
classified Mr. Knox as “at risk.” On 26 December 2003, a nurse
observed Mr. Knox had a temperature of 38.8 Celsius degrees (101.84
degrees Fahrenheit), for which he was given 850 milligrams of
Tylenol. On 27 December 2003, Mr. Knox's temperature reached 41.6
degrees Celsius (106.88 degrees Fahrenheit). In an effort to
combat Mr. Knox's rising temperature, he was subsequently given a
cooling blanket and 800 milligrams of Motrin. On 28 December 2003,
Mr. Knox appeared to be in septic shock. On 29 December 2003, Mr.
Knox was pronounced dead.
On 17 January 2006, plaintiff filed a complaint for medical
malpractice pursuant to North Carolina General Statutes § 90-21.11,
against
inter alia University Health Systems of Eastern Carolina,Inc.; Pitt County Memorial Hospital, Incorporated; Dr. Indira Murr;
Dr. Jody Haigood; Dr. Karen Kinney; Dr. Mark Newell; Dr. Curtis
Bower; and Dr. Christopher Logue. Plaintiff's complaint alleged
the negligence of the foregoing doctors caused Mr. Knox pain and
suffering, and ultimately resulted in Mr. Knox's death. In response
to the complaint, Dr. Newell moved for, and received, an extension
of time to answer the complaint on 10 February 2006. On 23 March
2006, Dr. Newell filed an answer and a motion to dismiss
plaintiff's action on the grounds that the complaint failed to
comply with Rule 9(j) of the North Carolina Rules of Civil
Procedure. On 24 March 2006, Dr. Kinney likewise filed an answer,
denying the substantive allegation of the complaint, and a motion
to dismiss for failure to comply with Rule 9(j).
On 2 October 2006, the motions to dismiss filed by Dr. Newell
and Dr. Kinney were heard before Judge W. Russell Duke, Jr. in
Wilson County Superior Court. On 3 November 2006, Judge Duke
entered an order granting the motions of Dr. Newell and Dr. Kinney
for dismissal of the action due to plaintiff's failure to comply
with Rule 9(j) of the North Carolina Rules of Civil Procedure and
the absence of justification for an allowance under Rule 702(e) of
the North Carolina Rules of Evidence. Plaintiff now appeals the
order of the trial court granting defendants' motion for dismissal.
I.
[1] Plaintiff argues the trial court erred in dismissing
plaintiff's complaint alleging medical malpractice due to
plaintiff's failure to comply with Rule 9(j) of the North CarolinaRules of Civil Procedure. Specifically, plaintiff argues the trial
court committed prejudicial error by (1) failing to find as a fact
and conclude as a matter of law that neither Dr. Mark A. Newell nor
Dr. Karen Kinney performed a surgical operation on the deceased
while in their care; (2) failing to find that neither Dr. Newell
nor Dr. Kinney performed an operation or performed any surgery on
the deceased within a medical specialty; (3) failing to find that
since neither Dr. Newell nor Dr. Kinney performed any surgery on
deceased, that it was not necessary for plaintiff to allege in her
complaint that plaintiff comply with Rule 702(b) of the North
Carolina Rules of Evidence or Rule 9(j) of the North Carolina Rules
of Civil Procedure; (4) failing to find that plaintiff's expert
witness could testify on the standard of health care where the ends
of justice could be met; (5) concluding as a matter of law that
plaintiff could not have reasonably expected that Dr. Marion
Reynolds would qualify as an expert witness under Rule 702 of the
Rules of Evidence; (6) failing to find that Dr. Kinney did not
treat the deceased and did not perform any surgery on the deceased
within a specialty; and (7) failing to find that Rule 9(j) did not
apply to plaintiff when the medical specialist performed no surgery
on the deceased. We disagree.
“Rule 9(j) of the North Carolina Rules of Civil Procedure
requires any complaint alleging medical malpractice by a health
care provider to specifically assert 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 [thatthe 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) (citation
omitted);
see N.C. Gen. Stat. § 1A-1, Rule 9(j) (2005). If such an
assertion is not made, the trial court must dismiss the complaint.
Trapp, 129 N.C. App. at 240, 497 S.E.2d at 710.
Rule 702 of our Rules of Evidence provides in pertinent part:
(b) In a medical malpractice action as defined in
G.S. 90-21.11, a person shall not give expert testimony
on the appropriate standard of health care as defined in
G.S. 90-21.12 unless the person is a licensed health care
provider in this State or another state and meets the
following criteria:
(1) If the party against whom or on whose
behalf the testimony is offered is a
specialist, the expert witness must:
a. Specialize in the same specialty as
the party against whom or on whose
behalf the testimony is offered; or
b. Specialize in a similar specialty
which includes within its specialty
the performance of the procedure
that is the subject of the complaint
and have prior experience treating
similar patients.
....
(c) Notwithstanding subsection (b) of this section,
if the party against whom or on whose behalf the
testimony is offered is a general practitioner, the
expert witness, during the year immediately preceding the
date of the occurrence that is the basis for the action,
must have devoted a majority of his or her professional
time to either or both of the following:
(1) Active clinical practice as a general
practitioner; or
(2) Instruction of students in an accredited
health professional school or accredited
residency or clinical research program in
the general practice of medicine.
....
(e) Upon motion by either party, a resident judge of
the superior court in the county or judicial district in
which the action is pending may allow expert testimony on
the appropriate standard of health care by a witness who
does not meet the requirements of subsection (b) or (c)
of this Rule, but who is otherwise qualified as an expert
witness, upon a showing by the movant of extraordinary
circumstances and a determination by the court that the
motion should be allowed to serve the ends of justice.
N.C. Gen. Stat. § 8C-1, Rule 702 (2005). In the instant case,
plaintiff made a motion pursuant to Rule 702(b) of the North
Carolina Rules of Evidence and Rule 9(j)(2) of the North Carolina
Rules of Civil Procedure stating that she would seek to have an
expert witness qualified to testify as to the appropriate standard
of medical care. Further, plaintiff asserted that the ends of
justice would be met by allowing the witness to testify should the
witness not meet the requirements of Rule 702 subsection (b) or
(c).
Subsequent to plaintiff's 702(b) motion, plaintiff identified
Dr. Marion Reynolds, a board certified obstetrician, as plaintiff's
Rule 9(j) certifying expert. In dismissing plaintiff's action
against Dr. Newell and Dr. Kinney, the trial judge concluded that
plaintiff could not have reasonably expected Dr. Reynolds to
qualify as an expert witness under Rule 702 of the North Carolina
Rules of Evidence. The trial judge also concluded that sufficientextraordinary circumstances did not exist such that Dr. Reynolds
should be allowed to testify to serve the ends of justice.
Plaintiff now argues the trial judge erred in determining Dr.
Reynolds did not meet the requirements of Rule 702 subsections (b)
or (c). Plaintiff does not dispute that Dr. Kinney and Dr. Newell
are specialists. Rather, plaintiff asserts that neither Dr. Kinney
nor Dr. Newell was practicing within their specialty at the time
they treated Mr. Knox. Upon review, the record does not support
this contention. The undisputed evidence in the record indicates
Dr. Kinney is a board certified emergency room physician and Dr.
Newell is a board certified trauma surgeon. In addition, the
record shows both doctors were acting within their capacities as
specialists in treating Mr. Knox as a trauma patient. Thus, both
Dr. Kinney and Dr. Newell are properly deemed as specialists under
Rule 702. See Formyduval v. Bunn, 138 N.C. App. 381, 388, 530
S.E.2d 96, 101, disc. review denied, 353 N.C. 262, 546 S.E.2d 93
(2000); N.C. Gen. Stat. § 8C-1, Rule 702. Plaintiff's witness, Dr.
Reynolds, is not certified as either an emergency room physician or
a trauma surgeon, nor does Dr. Reynolds practice in either of these
areas. Therefore, Dr. Reynolds could not reasonably be expected to
qualify as an expert witness as required by Rule 9(j), and does not
qualify as an expert witness under Rule 702 subsections (b) or (c).
See N.C. Gen. Stat. § 1A-1, Rule 9(j); N.C. Gen. Stat. § 8C-1, Rule
702(b) and (c).
Plaintiff next argues that if Dr. Reynolds is not a competent
expert witness under Rule 702 subsections (b) or (c), she should becertified under Rule 702(e) because the ends of justice would be
met by allowing her testimony. We are unpersuaded by plaintiff's
argument. The record on appeal does not show any extraordinary
circumstances to support the certification of Dr. Reynolds under
Rule 702(e), nor does plaintiff argue such circumstances exist.
See N.C. Gen. Stat. § 8C-1, Rule 702(e). Therefore, we hold the
trial judge did not err in concluding that plaintiff did not comply
with Rule 9(j) of the North Carolina Rules of Civil Procedure. See
N.C. Gen. Stat. § 1A-1, Rule 9(j).
II.
[2] Plaintiff next contends that the trial court erred by
failing to find that Rule 9(j) of the North Carolina Rules of Civil
Procedure does not apply when the constitutional right to a trial
by jury is guaranteed and not waived. However, the assignment of
error plaintiff seeks to support does not make such a contention.
See Wade v. Wade, 72 N.C. App. 372, 375, 325 S.E.2d 260, 266,
disc.
review denied, 313 N.C. 612, 330 S.E.2d 616 (1985) (“The assignment
of error must clearly disclose the question presented.”). Upon
review, plaintiff's argument does not correspond to any of the
assignments of error set out in the record on appeal.
See N.C. R.
App. P. 10 (2007). This Court has previously held that
the “scope
of appellate review is limited to the issues presented by
assignments of error set out in the record on appeal; where the
issue presented in the appellant's brief does not correspond to a
proper assignment of error, the matter is not properly considered
by the appellate court.”
Bustle v. Rice, 116 N.C. App. 658, 659,
449 S.E.2d 10, 11 (1994) (citation omitted). Accordingly, we
decline to address the merits of this argument.
Id. Therefore, we hold the trial judge did not err in granting
defendants' motion to dismiss for plaintiff's failure to comply
with Rule 9(j) of the North Carolina Rules of Civil Procedure.
Affirmed.
Chief Judge MARTIN and Judge ELMORE concur.
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