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MARGARET JONES REID, Administrator of the Estate of WILLIAM REID,
JR., Plaintiff v. JACK C. COLE, M.D., CHRISTIAN MANN, M.D.,
CLIFFORD W. LINDSEY, M.D., CAROLINA PHYSICIANS, P.A., PITT
MEMORIAL HOSPITAL FOUNDATION, INC., AND PITT COUNTY MEMORIAL
HOSPITAL INCORPORATED, Defendants
1. Appeal and Error--appealability_denial of motion to dismiss--writ of certiorari-- administration of justice
Although defendants' appeal in a medical malpractice case from the denial of their motion to dismiss is typically an appeal from an interlocutory order, the Court of Appeals did not need to determine whether a substantial right was affected based on its election in its discretion to grant defendants' petition for writ of certiorari to address the merits of the appeal and its determination that the administration of justice would best be served by granting defendants' petition.
2. Pleadings_suit filed by nonattorney administrator_not nullity_defect cured by
A medical malpractice wrongful death action filed pro se by the administrator of a deceased patient's estate was not a legal nullity because the administrator was not an attorney, and this defect in plaintiff's complaint was cured by the subsequent appearance of a properly licensed and admitted attorney for plaintiff after the statute of limitations had expired.
Judge JACKSON dissenting.
Clifford W. Lindsey, M.D., Pitt Memorial Hospital Foundation, Inc., and Pitt County Memorial Hospital, Incorporated (defendants) appeal the denial of their motion to dismiss Margaret Jones Reid's (plaintiff) medical malpractice action. After careful consideration, we affirm the order of the trial court.
William Reid, Jr. (Mr. Reid), plaintiff's husband, died 25 February 2004 at Pitt County Memorial Hospital. Plaintiff was appointed the administrator of his estate (the estate). She retained counsel to pursue a claim of wrongful death against defendants on behalf of the estate. Approximately one month prior to the expiration of the statute of limitations on the wrongful death claim, plaintiff's attorney relocated and withdrew from representation. Thereafter, plaintiff filed a pro se complaint against defendants alleging that they were negligent in the wrongful death of Mr. Reid. Defendants filed motions to dismiss with their answer on the ground that plaintiff was not an attorney and thus could not appear pro se on behalf of the estate. Defendants argued that the improper appearance rendered plaintiff's complaint a legal nullity and therefore plaintiff was barred from refiling the action with counsel because the statute of limitations had since expired. Plaintiff opposed the motions, arguing that any defect in her complaint was cured by the subsequent appearance of counsel, based on this Court's ruling in Theil v. Detering, 68 N.C. App. 754, 315 S.E.2d 789 (1984). Defendants' motions to dismiss were denied by the trial court on 31 October 2006. In its order, the trial court certified the matter for immediate appeal pursuant to N.C. Gen. Stat. § 1-277 (2005) and N.C. Gen. Stat. § 1A-1, Rule 54(b) (2005), stating that there is no justifiable reason for delay and . . . hereby certifies this Order as immediately appealable to the North Carolina Court of Appeals.
Defendants present the following issues for this Court's review: (1) whether the appeal is properly before this Court; and (2) whether the trial court erred in denying defendants' motions to dismiss.
JACKSON, Judge, dissenting.
For the reasons stated below, I respectfully dissent from the majority's conclusion to reach the merits of this case. I would (1) hold that the order is interlocutory, (2) grant the motion to dismiss, and (3) deny the petition for writ of certiorari.
The majority cites Staton v. Russell, 151 N.C. App. 1, 565 S.E.2d 103 (2002), in support of granting certiorari stating the administration of justice will best be served by granting defendants' petition. I do not think granting certiorari in this case is warranted, however, as I do not believe that it falls within the criteria established by extensive and longstanding precedent pertaining to interlocutory appeals. Staton clearly is distinguishable from the instant case. It involved five separate lawsuits with cross-claims and third-party claims which spanned six years. The parties included a United States citizen residing in Virginia, two resident citizens of Columbia, South America _ one of whom also was a United States citizen _ and two Florida revocable living trusts. Oddly, the appellants and appellee were not adverse parties in any of the five North Carolina lawsuits. The appeal involved a North Carolina order enjoining a related declaratory judgment action filed in Florida. Due to the complexity of the Staton case, it is understandable that this Court would grant certiorari.
The facts of the instant case are quite dissimilar to those in Staton. Notwithstanding the fact that there are two appeals currently before this Court, underlying both is but a single action for wrongful death. There are no cross-claims or third-party claims. All the parties are North Carolina residents or business entities. There is no out-of-state lawsuit involved. Further, although there is some likelihood that dismissing this appeal would only delay our ultimate review, such likelihood is no more so than with any other case of the denial of a motion to dismiss based upon an interlocutory appeal.
Defendants argue that the denial of their motion to dismiss affects a substantial right in that it involves a complaint that should have been treated as a legal nullity; if not reversed, the ruling will allow an illegal and void lawsuit to continue against them. A two-part test has developed to assess the appealability ofinterlocutory orders as a substantial right. J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1, 5, 362 S.E.2d 812, 815 (1987). First, the right itself must be 'substantial.' Second, the enforcement of the substantial right must be lost, prejudiced or be less than adequately protected by exception to entry of the interlocutory order. Id. at 5-6, 362 S.E.2d at 815 (internal citations omitted).
Here, there is no substantial right which will not be preserved for later appeal, and delay would not injure defendants, other than the ordinary costs of defending the action. [A]voiding the time and expense of trial is not a substantial right justifying immediate appeal. Lee v. Baxter, 147 N.C. App. 517, 520, 556 S.E.2d 36, 38 (2001). Accordingly, I would grant the motion to dismiss and deny the petition for writ of certiorari.
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