*********** Upon review of the competent evidence of record with reference to the errors assigned, and finding no good grounds to receive further evidence, or to rehear the parties or their representatives, the Full Commission affirms with minor modifications, the Decision and Order of the Special Deputy Commissioner.
*********** Based upon the competent evidence of record, the Full Commission enters the following:
FINDINGS OF FACT 1. On May 6, 2010, Plaintiff initiated this civil action by filing his Tort Claims Act affidavit with the North Carolina Industrial Commission.
2. Plaintiff's affidavit alleges that employees or agents of North Carolina Department of Correction (hereinafter "NCDOC") committed acts of medical negligence in *Page 2 providing treatment, specifically alleging that he was not properly prescribed medication and was damaged by contracting a life-long virus.
3. On June 2, 2010, Defendant filed a Motion to Dismiss and Motion for Stay of Discovery.
4. Defendant moved to dismiss the action on the grounds that Plaintiff failed to assert that the medical care has been reviewed by an individual reasonably expected to qualify as an expert witness as required by Rule 9(j) of the North Carolina Rules of Civil Procedure.
5. On August 3, 2010, the above captioned tort claim came before the Special Deputy Commissioner for a pretrial videoconference hearing upon Defendant's Motion to Dismiss.
6. On August 26, 2010, the Special Deputy Commissioner filed an Interlocutory Order allowing Plaintiff One Hundred Twenty (120) days to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. The Interlocutory Order further stated that "[i]n the event that Plaintiff fails to timely satisfy the requirements of this Order, his tort claim will be subject to dismissal with prejudice" and further stated the following:
In the event that Plaintiff fails to timely satisfy the requirements of this Order, the above captioned tort claim SHALL be subject to dismissal with prejudice and such dismissal may occur upon a sua sponte review by the undersigned or a Deputy Commissioner with the North Carolina Industrial Commission. (Interlocutory Order, Order, Paragraph 3).
7. Plaintiff failed to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure within the time period set forth in the August 26, 2010 Interlocutory Order.
*********** Based upon the foregoing Findings of Fact, the Full Commission enters the following: *Page 3
CONCLUSIONS OF LAW 1. N.C. Gen. Stat. § 143-291(a) confers upon the North Carolina Industrial Commission jurisdiction to hear negligence claims against the State Board of Education, the Board of Transportation, and all other departments, institutions and agencies of the State.
2. Under the provisions of the Tort Claims Act, negligence is determined by the same rules applicable to private parties.Bolkhir v. N.C. State University,321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988).
3. Rule T205 of the North Carolina Tort Claims Rules states that "the Industrial Commission may act upon a Motion at any time, despite the absence of notice to all parties, and without awaiting a response."
4. Rule 9(j) of the North Carolina Rules of Civil Procedure states the following:
*Page 4Any complaint alleging medical malpractice by a health care provider as defined in N.C. Gen. Stat. § 90-21.11 in failing to comply with the applicable standard of care under N.C. Gen. Stat. § 90-21.12 shall be dismissed unless:
a) 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;
b) 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
c) 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) (2010).
5. Rule 9(j) of the North Carolina Rules of Civil Procedure further states that a judge 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.
N.C. Gen. Stat. § 1A-1, Rule 9(j) (2010).
6. The Tort Claims Act affidavit for the above captioned matter does not assert that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness.
7. The Special Deputy Commissioner provided Plaintiff with One Hundred Twenty (120) days to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure
8. Plaintiff has not provided an affidavit in compliance with Rule 9(j) of the North Carolina Rules of Civil Procedure within the time period permitted by the August 26, 2010 Interlocutory Order. Furthermore, no exception to Rule 9(j) of the North Carolina Rules of Civil Procedure is applicable to the above captioned tort matter. As such, Plaintiff is not entitled to recovery under the Tort Claims Act, and the above captioned tort matter is subject to dismissal with prejudice.
*********** Based upon the foregoing Findings of Fact and Conclusions of Law, the Full Commission enters the following:
ORDER *Page 5 1. Defendant's Motion to Dismiss is hereby GRANTED. Plaintiff's above captioned civil action is hereby DISMISSED WITH PREJUDICE.
2. No costs are taxed as Plaintiff was permitted to file this civil action in forma pauperis.
This the ___ day of September 2011.
S/___________________ BERNADINE S. BALLANCE COMMISSIONER
CONCURRING:
*Page 1S/___________________ TAMMY R. NANCE COMMISSIONER
S/___________________ LINDA CHEATHAM COMMISSIONER