IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA 15-207
Filed: 5 January 2016
Orange County, No. 13 CVS 2083
ANTONISHA ALSTON,
ADMINISTRATOR, ESTATE OF ANTONIO
BELLAMY, Plaintiff,
v.
AMY HUESKE, Defendant.
Appeal by Plaintiff from Order entered 30 September 2014 by Judge Carl R.
Fox in Orange County Superior Court. Heard in the Court of Appeals 27 August
2015.
Law Offices of Alvin L. Pittman, by Alvin L. Pittman, for Plaintiff-Appellant.
Yates, McLamb, and Weyher, LLP, by Samuel G. Thompson, Jr., for Defendant-
Appellee.
HUNTER, JR., Robert N., Judge.
Antonisha Alston, the administrator for the Estate of Antonio R. Bellamy (“the
Administrator”) appeals from the trial court’s order dismissing Plaintiff’s complaint
under Rules 9(j) and 12(b)(6) as well as the court’s denial of his motion to amend the
pleadings. After review, we affirm the trial court’s dismissal.
I. Factual and Procedural Background
ESTATE OF BELLAMY V. HUESKE
Opinion of the Court
On 23 December 2013, one week before the statute of limitations ran, the
Administrator filed an unverified complaint against Dr. Herendra Arora (“Dr. Arora”)
and Amy Hueske (“Hueske”), a nurse, seeking damages for medical negligence. The
complaint alleges the following narrative.
On 27 December 2011, Antonio Bellamy (“Bellamy”), suffered a burn on his
right foot and was subsequently hospitalized at University of North Carolina
Hospitals in Chapel Hill, North Carolina. On 30 December 2011, Bellamy underwent
a skin graft to address the burn. This procedure employed the use of a Laryngeal
Mask Airway to facilitate his breathing. During the operation, the attending
anesthesiologist, Dr. Arora, left the room for reasons not described in the complaint.
Medical staff, namely Dr. Arora and nurse Hueske failed to monitor or document his
breathing, oxygenation, and ventilation for three minutes.
During this time, Bellamy’s blood pressure and heart rate fell, requiring
medical staff to administer medication to increase Bellamy’s blood pressure. When
this proved insufficient, medical staff administered CPR. Finally, medical staff
inserted an endotracheal tube into Bellamy’s airway. The tube first inserted was not
properly inspected and had a leak which required the tube to be exchanged for
another. During the events described above, Bellamy suffered a period of decreased
oxygen for approximately fifteen minutes which led to cardiac arrest. Medical staff
placed Bellamy on a ventilator. Through hospital representatives, Dr. Arora and
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Opinion of the Court
Hueske relayed to Bellamy’s family that there was a “small complication involving
an equipment malfunction, but it was detected in time before any harm was done . .
. [Bellamy] would be fine.” The day after the surgery, Bellamy’s family was pressured
to make a decision, and ultimately decided to remove Bellamy from the ventilator.
Bellamy passed away in the hospital on 1 January 2012.
In order to comply with Rule 9(j), the complaint alleged the following:
29. Prior to commencing this action, the medical records
were reviewed and evaluated by a duly Board Certified who
opined that the care rendered to Decedent was below the
applicable standard of care.
30. . . . The medical care referred to in this complaint has
been reviewed by person(s) who are reasonably expected to
qualify as expert witnesses, or whom the plaintiff will seek
to have qualified as expert witnesses under Rule 702 of the
Rules of Evidence, and who is willing to testify that the
medical care rendered plaintiff by the defendant(s) did not
comply with the applicable standard of care.
On 24 February 2014, Dr. Arora and Hueske filed an unverified answer
generally denying the allegations of the Administrator’s complaint. Dr. Arora and
Hueske asserted defenses under Rule 12(b)(6) and Rule 9(j) within their answer.
Following the pleading, the Administrator agreed to voluntarily dismiss Dr. Arora
pursuant to Rule 41. This left only the nurse, Hueske, as a Defendant.
The Administrator requested leave to amend the pleadings in order to clearly
comply with Rule 9(j), but the trial court denied the Administrator’s request under
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ESTATE OF BELLAMY V. HUESKE
Opinion of the Court
Rule 15(a). The court reasoned the legislature intended 9(j) be satisfied from the
beginning, at the time the complaint was filed. The trial court dismissed the case
without prejudice pursuant to Rule 12(b)(6) and Rule 9(j) in an order dated 25
September 2014. The Administrator timely filed a notice of appeal with this Court.
II. Jurisdiction
Jurisdiction lies in this court by right pursuant to N.C. Gen. Stat. § 7A-27(b)(1)
from a final judgment of a superior court.
III. Standard of Review
We review the trial court’s dismissal de novo. The standard of review of a Rule
12(b)(6) motion to dismiss is de novo. Leary v. N.C. Forest Prods., Inc., 157 N.C. App.
396, 400, 580 S.E.2d 1, 4 (2003). Likewise, a trial court’s order dismissing a complaint
pursuant to Rule 9(j) is reviewed de novo on appeal because it is a question of law.
Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 256, 677 S.E.2d
465, 477 (2009).
IV. Analysis
Rule 9 was amended in 1995 by adding a new subsection, subsection (j). N.C.
Sess. Law 1995-309. At that time, the newly enacted Rule 9(j) required any medical
malpractice complaint to 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
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ESTATE OF BELLAMY V. HUESKE
Opinion of the Court
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.
Id.
In Thigpen v. Ngo, the Supreme Court of North Carolina interpreted Rule 9(j)
where the plaintiff failed to specify that the medical records had been reviewed by an
expert before the plaintiff filed the complaint. Thigpen v. Ngo, 355 N.C. 198, 199, 558
S.E.2d 162, 163–164 (2002). In Thigpen, before the expiration of the statute of
limitations, plaintiff filed an amended complaint certifying the “‘medical care has
been reviewed’ by someone who would qualify as an expert.” Id., 558 S.E.2d at 163–
164.
The Supreme Court reasoned that the statute’s language was clear and
unambiguous in requiring dismissal if the requirements of Rule 9(j) were not met.
Id. at 202, 558 S.E.2d at 165. “[M]edical malpractice complaints have a distinct
requirement of expert certification with which plaintiffs must comply. Such
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Opinion of the Court
complaints will receive strict consideration by the trial judge. Failure to include the
certification leads to dismissal.” Id., 558 S.E.2d at 165.
In 2011, the General Assembly further amended Rule 9(j) effective 1 October
2011. N.C. Sess. Law 2011-400. As it reads today, Rule 9(j) requires any complaint
alleging medical malpractice be dismissed unless:
(1) The pleading specifically asserts that the medical care
and all medical records pertaining to the alleged negligence
that are available to the plaintiff after reasonable inquiry
have 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
and all medical records pertaining to the alleged negligence
that are available to the plaintiff after reasonable inquiry
have 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.
N.C. Gen. Stat. § 1A-1, Rule 9(j) (2013) (emphasis added to reflect amendment). The
Supreme Court of North Carolina decided a case under Rule 9(j) again in 2012, noting
that although Rule 9(j) was amended, the requirements remain “substantially
unchanged.” Moore v. Proper, 366 N.C. 25, 29 n.1, 726 S.E.2d 812, 816 n.1 (2012).
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ESTATE OF BELLAMY V. HUESKE
Opinion of the Court
It is important for persons filing a complaint under Rule 9(j) to ensure
compliance with the rule at the time of filing. Expert review “must take place before
the filing of the complaint.” Thigpen, 355 N.C. at 205, 558 S.E.2d at 167. Our courts
have strictly enforced this requirement because of the legislature’s purpose in
enacting Rule 9(j).
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.
Thigpen, 355 N.C. at 203–204, 558 S.E.2d at 166 (emphasis added).
In addition, Rule 9(j) requires the medical records and medical care be
“reviewed by a person who is reasonably expected to qualify as an expert witness.”
N.C. Gen. Stat. § 1A-1, Rule 9(j)(1) (2013). To comply, the record and care reviewer
must be reasonably expected to qualify under Rule 702 of the North Carolina Rules
of Evidence. Moore, 366 N.C. at 26, 726 S.E.2d at 814. Rule 702(b) governs expert
testimony in medical malpractice actions. An expert in a medical malpractice action
must be a licensed health care provider, and if the party is a specialist, the expert
must specialize in the same or a similar specialty as the party against whom the
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Opinion of the Court
testimony is given. N.C. Gen. Stat. § 8C-1, Rule 702(b)(1) (2013). The Rule also
requires either an active clinical practice or instructing students in a professional
school. N.C. Gen. Stat. § 8C-1, Rule 702(b)(2) (2013).
In fact, since Rule 9(j) requires a high standard for pleadings, Rule 9(j) also
provides an avenue to extend the statute of limitations in order to provide additional
time, if needed, to meet the expert review requirement. See Brown v. Kindred
Nursing Ctrs. East, LLC, 364 N.C. 76, 80, 692 S.E.2d 87, 89–90 (2010). In its
discretion, the trial court may allow a motion to extend the statute of limitations for
up to 120 days. N.C. Gen. Stat. § 1A-1, Rule 9(j) (2013). The intent was to allow
additional time to find an expert to review the medical records so that they may be
reviewed prior to filing the complaint to meet the standard of Rule 9(j). Brown at 80,
692 S.E.2d at 90. The extension may not be used to amend a previously filed
complaint in order for it to comply with the 9(j) requirement. Id. “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. (quoting Thigpen, 355 N.C. at 204, 558 S.E.2d at 166).
A. Motion to Dismiss
We review an appeal from a motion to dismiss de novo. On a motion to dismiss,
all material facts are taken as true and the motion is viewed in the light most
favorable to the plaintiff. Robinson v. Smith, 219 N.C. App. 518, 521, 724 S.E.2d 629,
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ESTATE OF BELLAMY V. HUESKE
Opinion of the Court
631 (2012). In medical malpractice actions, complaints must meet a higher standard
than generally required to survive a motion to dismiss. As the statute requires, the
requirements of Rule 9(j) must be met in the complaint in order to survive a motion
to dismiss. N.C. Gen. Stat. § 1A-1, Rule 9(j) (2013).
Rule 9(j) must be satisfied at the time of the complaint’s filing. Here, the
complaint states:
29. Prior to commencing this action, the medical records
were reviewed and evaluated by a duly Board Certified who
opined that the care rendered to Decedent was below the
applicable standard of care.
30. . . . The medical care referred to in this complaint has
been reviewed by person(s) who are reasonably expected to
qualify as expert witnesses, or whom the plaintiff will seek
to have qualified as expert witnesses under Rule 702 of the
Rules of Evidence, and who is willing to testify that the
medical care rendered plaintiff by the defendant(s) did not
comply with the applicable standard of care.
The Administrator argues the trial court erred by granting the dismissal
because the complaint met the requirements of Rule 9(j), thus stating a claim for
which relief could be granted. Specifically, the Administrator points out there is no
requirement for the requirements of Rule 9(j) to be set out within the same
paragraph. Such a “hyper-technical” reading of the rule conflicts with the purpose of
Rule 9(j), to prevent frivolous malpractice claims. A reading of the whole record
shows that this claim is not frivolous. The Administrator also contends that in
practice, dismissal under Rule 9(j) usually only happens after early discovery
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Opinion of the Court
determines whether the board certified reviewers of medical records were qualified
to testify as expert witnesses. We are not persuaded.
The wording of the complaint renders compliance with 9(j) problematic. A
plaintiff can avoid this result by using the statutory language. Rule 9(j) requires “the
medical care and all medical records” be reviewed by a person reasonably expected to
qualify as an expert witness and who is willing to testify the applicable standard of
care was not met. According to the complaint, the medical care was reviewed by
someone reasonably expected to qualify as an expert witness who is willing to testify
that defendants did not comply with the applicable standard of care. However, the
complaint alleges medical records were reviewed by a “Board Certified” that said the
care was below the applicable standard of care. Thus, the complaint does not properly
allege the medical records were reviewed by a person reasonably expected to qualify
as an expert witness.
This omission in the complaint unnecessarily raises questions about whether
the witness being “reasonably expected” to qualify as an expert under Rule 702. The
only information we have is that the witness is “Board Certified.” We do not know
whether the witness is a certified doctor or nurse, or even another health care
professional. We also cannot say whether the “Board Certified” person is of the same
or similar specialty as would be required to testify Hueske violated a standard of care.
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ESTATE OF BELLAMY V. HUESKE
Opinion of the Court
Simply put, we do not have enough information to evaluate whether this witness
could reasonably be expected to qualify as an expert in this case.
The legislature passed Rule 9(j) to require a more stringent procedure to file a
medical malpractice claim. Although pleadings are generally construed liberally,
legislative intent as well as the strict interpretation given to Rule 9(j) by the North
Carolina Supreme Court require us to find the wording of this complaint insufficient
to meet the high standard of Rule 9(j).
B. Motion to Amend
In medical malpractice cases, Rule 9(j) requires that the plaintiff obtain
relevant medical records and have those medical records examined by a person who
is reasonably expected to qualify as an expert witness prior to the filing of the initial
complaint or within 120 days of the filing of the complaint should the plaintiff ask for
an extension of time pursuant to Rule 9(j). N.C. Gen. Stat. §1A-1, Rule 9(j) (2013).
Because the legislature has required strict compliance with this rule, our courts have
ruled that if a pleader fails to properly plead his case in his complaint, it is subject to
dismissal without the opportunity for the plaintiff to amend his complaint under Rule
15(a). N.C. Gen. Stat. §1A-1, Rule 15(a) (2013); Keith v. Northern Hosp. Dist. Of
Surry County, 129 N.C. App. 402, 405, 499 S.E.2d 200, 202 (1998). “To read Rule 15
in this manner would defeat the objective of Rule 9(j) which . . . seeks to avoid the
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ESTATE OF BELLAMY V. HUESKE
Opinion of the Court
filing of frivolous medical malpractice claims.” Id., 499 S.E.2d at 202 (emphasis in
original).
Another possibility is to voluntarily dismiss the action pursuant to Rule 41. A
voluntary dismissal by judicial order under Rule 41(a)(2) results in a dismissal
without prejudice and generally allows a new action based on the same claim to be
commenced within one year of the dismissal so long as the original claim was brought
within the applicable statute of limitations. N.C. Gen. Stat. §1A-1, Rule 41(a)(2)
(2013). Provided the original complaint was filed within the statutory period, Rule
41 allows, in some situations, a 9(j) deficient complaint to be dismissed and then re-
filed with a sufficient 9(j) statement within one year of dismissal. Brisson v. Kathy
A. Santoriello, M.D., P.A., 351 N.C. 589, 593, 528 S.E.2d 568, 570 (2000). However,
to re-file after a voluntary dismissal, the action must still be “commenced within the
time prescribed therefor.” Bass v. Durham County Hosp. Corp., 158 N.C. App. 217,
224, 580 S.E.2d 738, 742 (2003) (Tyson, J., dissenting), rev’d, 358 N.C. 144, 592 S.E.2d
(2004) (adopting reasoning in dissenting opinion). An action is only “commenced”
under rule 9(j) if it has been properly reviewed by an expert at the time of filing. Id.
Because this plaintiff did not file the complaint with the proper Rule 9(j)
certification before the running of the statute of limitation, the complaint cannot have
been deemed to have commenced within the statute.
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ESTATE OF BELLAMY V. HUESKE
Opinion of the Court
The appellant asks that we review his Rule 15 motion as the functional
equivalent of a Rule 60 motion to correct a technical or clerical error. Because such
motion was not pled before the trial court and ruled on we have no jurisdiction to
determine this issue.
Although the Administrator presents an interesting procedural argument on
appeal, the transcript of the dismissal does not show she made a Rule 60 motion at
trial. Instead, the Administrator moved “to amend the complaint” without citing a
specific rule. The trial court denied the Administrator’s motion to amend her
complaint pursuant to Rule 15(a). At that time, the Administrator did not explain to
the court she intended to amend the complaint under Rule 60 nor did she make a
separate Rule 60 motion. We find no Rule 60 motion in the record or transcript and
thus have no jurisdiction to rule on a motion not made at the trial court.
V. Conclusion
For the foregoing reasons, we affirm the final judgment of the trial court.
AFFIRMED.
Judges Dillon and Dietz concur.
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