Jones v. N.C. Department of Correction

* * * * * * * * * * * The undersigned have reviewed the prior Order based upon the record of the proceedings before Commissioner Ballance. The appealing party has not shown good grounds to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Order.

* * * * * * * * * * * Based upon the evidence of record, the Full Commission finds the following:

FINDINGS OF FACT 1. On June 15, 2004, plaintiff filed a Tort Claim Affidavit with the North Carolina Industrial Commission alleging medical negligence.

2. On September 14, 2004, a telephonic hearing on plaintiff's claim was held before Commissioner Ballance. Plaintiff was allowed 60 days, up to and including November 15, 2004 to provide the Commission with an affidavit from a qualified medical expert which stated that in the expert opinion of the affiant, the care of which plaintiff complained did not comply with the applicable standard of care. Plaintiff was informed that the failure of plaintiff to provide the Commission with the necessary affidavit within the time allowed would result in the dismissal of plaintiff's claim.

3. On November 23, 2004, defendant filed a motion to dismiss, noting that plaintiff has failed to provide the required affidavit from a qualified medical expert within the allotted time period.

4. Plaintiff has failed to provide the Industrial Commission with an affidavit from a qualified medical expert which states that the care of which plaintiff complains does not comply with the applicable standard of care.

5. Plaintiff has failed to demonstrate that he possesses sufficient evidence to prosecute his claim against defendant.

* * * * * * * * * * * Based upon the findings of fact, the Full Commission concludes as follows:

CONCLUSIONS OF LAW 1. Plaintiff has failed to provide the Industrial Commission with an affidavit from a qualified medical expert which states that the care of which plaintiff complains does not comply with the applicable standard of medical care. Accordingly, plaintiff has failed to demonstrate that he possesses sufficient evidence to prosecute his claim against defendant. N.C. Gen. Stat. § 1A-1, Rule 9(j).

This the __ day of June, 2006.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

S/____________ BUCK LATTIMORE CHAIRMAN