IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-1230
Filed: 30 December 2016
Iredell County, No. 15 CVS 910
MARIA VAUGHAN, Plaintiff,
v.
LINDSAY MASHBURN, M.D., and LAKESHORE WOMEN’S SPECIALISTS, PC,
Defendants.
Appeal by Plaintiff from order entered 27 August 2015 by Judge Stanley L.
Allen in Iredell County Superior Court. Heard in the Court of Appeals 29 March 2016
and opinion filed by this Court on 21 June 2016. By order entered 1 July 2016, this
Court allowed Plaintiff’s Motion to Withdraw Opinion and Stay Mandate.
Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields and
Joshua D. Neighbors; Shapiro, Appleton & Duffan, P.C., by Kevin M. Duffan;
and Collum & Perry, PLLC, by Travis E. Collum, for Plaintiff.
Parker Poe Adams & Bernstein, LLP, by Chip Holmes and John D. Branson,
for Defendants.
STEPHENS, Judge.
This appeal presents the issue of whether a trial court abused its discretion in
denying Plaintiff’s motion to amend a timely-filed complaint alleging medical
malpractice in order to clarify a defective Rule 9(j) certification where (1) the motion
to amend is made after the statute of limitations has expired, but (2) the evidence is
undisputed that the actual Rule 9(j) review took place before the complaint was filed.
VAUGHAN V. MASHBURN
Opinion of the Court
Because Plaintiff’s amended complaint would not relate back to the filing date of the
original complaint, making the amendment futile, we are constrained to affirm the
trial court’s denial of Plaintiff’s motion to amend.
Factual and Procedural Background
On 3 May 2012, Plaintiff Maria Vaughan underwent a hysterectomy performed
by Defendant Lindsay Mashburn, M.D., a physician practicing obstetrics and
gynecology as an employee of Defendant Lakeshore Women’s Specialists, PC.
Vaughan alleges that, during the procedure, Mashburn inappropriately inflicted a
surgical wound to Vaughan’s right uterer. In preparation for filing a medical
malpractice claim against Defendants, in mid-October 2014, Vaughan’s trial counsel
contacted Nathan Hirsch, M.D., a specialist in obstetrics and gynecology who had
performed more than one hundred hysterectomies. Counsel sent Hirsch all medical
records related to Defendants’ alleged negligence for Hirsch’s review as required by
Rule 9(j) of the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat. § 1A-1,
Rule 9(j)(1) (2015) (requiring that a medical malpractice “pleading specifically
assert[] 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”) (emphasis added). On 31
-2-
VAUGHAN V. MASHBURN
Opinion of the Court
October 2014, Hirsch informed Vaughan’s counsel that he had formed the opinion
that the care and treatment provided to Vaughan by Defendants was a violation of
the applicable standard of care and that he would testify to that opinion. Thus, the
pre-suit review in Vaughan’s case complied in all respects with the requirements of
Rule 9(j).
However, the medical malpractice complaint Vaughan filed on 20 April 2015
stated “the Plaintiff avers that the medical care received by Maria Vaugh[a]n
complained of herein has been reviewed . . . .” (Emphasis added). This certification
language comes from a prior version of Rule 9(j):1
The medical care in this action has been reviewed by
persons reasonably expected to qualify as expert witnesses
pursuant to Rule 702 of the North Carolina Rules of
Evidence and are willing to testify that the medical care in
this case did not comply with the applicable standard of
care.
N.C. Gen. Stat. § 1A-1, Rule 9(j)(1) (2009) (emphasis added). As Vaughan concedes,
her certification omitted the required assertion that “all medical records pertaining
to the alleged negligence that are available to the plaintiff after reasonable inquiry”
were reviewed by the medical expert.
1 In 2011, our General Assembly amended Rule 9(j) to, inter alia, substitute “medical care and all
medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable
inquiry have been reviewed” for “medical care has been reviewed” in subsections (j)(1) and (j)(2). See
Session Law 2011-400, s. 3. This amendment thus created an additional requirement that plaintiffs
certify the review of their medical records, as well as their medical care, by “persons reasonably
expected to qualify as expert witnesses . . . .” See N.C. Gen. Stat. § 1A-1, Rule 9(j)(1).
-3-
VAUGHAN V. MASHBURN
Opinion of the Court
On 10 June 2015, Mashburn filed a motion to dismiss pursuant to Rule of Civil
Procedure 12(b)(6), asserting that the complaint failed to state a claim upon which
relief can be granted. On 12 June 2015, Defendants filed an answer, incorporating
Mashburn’s motion to dismiss by reference. On 30 June 2015, Vaughan filed a motion
for leave to file an amended complaint, seeking to amend the wording of the Rule 9(j)
certification to clarify that “all medical records pertaining to the alleged negligence
that are available to the plaintiff after reasonable inquiry” were reviewed by the
medical expert. Attached to the motion to amend were an affidavit of Vaughan’s trial
counsel, an affidavit of Hirsch, and Vaughan’s responses to Defendants’ Rule 9(j)
interrogatories, each of which indicated that Hirsch, who reasonably expected to
qualify as an expert witness pursuant to Rule 702, had reviewed Vaughan’s medical
records before the complaint was filed.
Following a hearing on 10 August 2015, on 27 August 2015, the trial court
entered an order granting Defendants’ motion to dismiss and denying Vaughan’s
motion to amend, stating two bases for its ruling:
1. Plaintiff’s Original Complaint, filed April 20, 2015, did
not comply with Rule 9(j) of the North Carolina Rules of
Civil Procedure, as amended effective October 1, 2011, in
that the pleading did not specifically assert that the
Plaintiff’s medical expert reviewed all medical records
pertaining to the alleged negligence that are available to
the Plaintiff after reasonably inquiry [and]
2. Plaintiff’s Motion for Leave to File an Amended
Complaint, filed on June 30, 2015, is . . . futile because the
-4-
VAUGHAN V. MASHBURN
Opinion of the Court
proposed amendment to Plaintiff’s Original Complaint
does not relate back to the filing date of Plaintiff’s Original
Complaint, and the statute of limitations ran on May 3,
2015.[]2
(Emphasis in original). From that order, Vaughan gave written notice of appeal on 5
September 2015.
Discussion
Vaughan argues that the trial court erred in concluding that her proposed
amendment was futile, and that, as a result, the court abused its discretion in denying
her motion to amend and erred in dismissing the action. Specifically, Vaughan
contends that the trial court was acting under a misapprehension of law, to wit, that
Vaughan’s proposed amended complaint did not relate back to the date of the filing
of the original complaint even though “uncontroverted evidence showed that an
appropriate expert review occurred before the filing of the original complaint.” We
are constrained by recent precedent to reject this argument.
Motions to amend are governed by N.C. Gen. Stat. § 1A-1,
Rule 15. Rule 15(a) provides that:
A party may amend his pleading once as a matter of course
at any time before a responsive pleading is served or, if the
pleading is one to which no responsive pleading is
permitted and the action has not been placed upon the trial
calendar, he may so amend it at any time within 30 days
after it is served. Otherwise a party may amend his
pleading only by leave of court or by written consent of the
2 Medical malpractice claims must be brought within three years of the last allegedly negligent act of
the physician or medical care provider. See N.C. Gen. Stat. § 1-15(c) (2015).
-5-
VAUGHAN V. MASHBURN
Opinion of the Court
adverse party; and leave shall be freely given when justice
so requires.
Generally, Rule 15 is construed liberally to allow
amendments where the opposing party will not be
materially prejudiced. Our standard of review for motions
to amend pleadings requires a showing that the trial court
abused its discretion.
Fintchre v. Duke Univ., __ N.C. App. __, __, 773 S.E.2d 318, 322-23 (2015) (citations
and brackets omitted). Futility of amendment is one reason that may justify a denial
of a motion to amend. Id. at __, 773 S.E.2d at 323. However, “[w]hen discretionary
rulings are made under a misapprehension of the law, this may constitute an abuse
of discretion.” Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC, __ N.C. App.
__, __, 763 S.E.2d 296, 299 (2014) (citations and internal quotation marks omitted),
appeal dismissed and disc. review denied, __ N.C. __, 769 S.E.2d 192 (2015).
Here, the trial court concluded that allowing Vaughan’s motion to amend
would be futile because the amended complaint would not relate back to the filing
date of her original complaint, a matter controlled by subsection (c) of Rule 15:
A claim asserted in an amended pleading is deemed to have
been interposed at the time the claim in the original
pleading was interposed, unless the original pleading does
not give notice of the transactions, occurrences, or series of
transactions or occurrences, to be proved pursuant to the
amended pleading.
N.C. Gen. Stat. § 1A-1, Rule 15(c) (2015). In the two decades since Rule 9(j) was
enacted, our State’s appellate courts have frequently considered the interplay
-6-
VAUGHAN V. MASHBURN
Opinion of the Court
between its certification requirements and the amendment and “relate back”
provisions of Rule 15(a) and (c).
“Rule 9(j) serves as a gatekeeper, enacted by the legislature, to prevent
frivolous malpractice claims by requiring expert review before filing of the action.
Rule 9(j) thus operates as a preliminary qualifier to control pleadings rather than to
act as a general mechanism to exclude expert testimony.” Moore v. Proper, 366 N.C.
25, 31, 726 S.E.2d 812, 817 (2012) (citation and internal quotation marks omitted;
emphasis in original). Soon after Rule 9(j) was enacted, this Court held that “a
medical malpractice complaint that fails to include [any] Rule 9(j) certification
[cannot] be subsequently amended pursuant to Rule 15 to include the Rule 9(j)
certification.” Keith v. N. Hosp. Dist., 129 N.C. App. 402, 404, 499 S.E.2d 200, 202,
disc. review denied, 348 N.C. 693, 511 S.E.2d 646 (1998). More recently, our Supreme
Court held that “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 v. Ngo, 355 N.C. 198, 204, 558 S.E.2d
162, 166 (2002) (emphasis added). Vaughan cites Thigpen as controlling the outcome
of her appeal and “establish[ing] that a medical malpractice plaintiff may amend [her]
Rule 9(j) certification and receive benefit of relation back under Rule 15 so long as
there is evidence ‘the review occurred before the filing of the original complaint’ in
-7-
VAUGHAN V. MASHBURN
Opinion of the Court
the form of an affidavit or otherwise,” such as the evidence presented to the trial court
by Vaughan.
We believe that Thigpen differs factually and procedurally from Vaughan’s
case in several respects, including that Thigpen actually filed an amended medical
malpractice complaint to cure her failure to include any Rule 9(j) certification in her
original complaint. Id. at 200, 558 S.E.2d at 164. “[S]ix days after the statute of
limitations expired, [the] plaintiff filed an amended complaint including a
certification that the ‘medical care has been reviewed’ by someone who would qualify
as an expert.” Id. The plaintiff’s case was dismissed by the trial court for failure to
comply with the requirements of Rule 9(j). Id. Thus, among other issues, the
Supreme Court considered whether
an amended complaint which fails to allege that review of
the medical care in a medical malpractice action took place
before the filing of the original complaint satisfies the
requirements of Rule 9(j). We hold it does not. . . . In light
of the plain language of the rule, the title of the act, and
the legislative intent previously discussed, it appears
review must occur before filing to withstand dismissal.
Here, in her amended complaint, [the] plaintiff simply
alleged that [the] plaintiff’s medical care has been reviewed
by a person who is reasonably expected to qualify as an
expert witness. There is no evidence in the record that
plaintiff alleged the review occurred before the filing of the
original complaint. Specifically, there was no affirmative
affidavit or date showing that the review took place before
the statute of limitations expired. Allowing a plaintiff to
file a medical malpractice complaint and to then wait until
after the filing to have the allegations reviewed by an
expert would pervert the purpose of Rule 9(j).
-8-
VAUGHAN V. MASHBURN
Opinion of the Court
Id. at 204, 558 S.E.2d at 166-67 (citation, internal quotation marks, and some
brackets omitted; some emphasis added). In other words, the Court held that, where
an amended complaint is allowed to correct a flawed Rule 9(j) certification, the
amendment must specify that the required review occurred before the original
complaint was filed in order to satisfy the requirements of Rule 9(j). However,
contrary to Vaughan’s assertion on appeal, the above-quoted language does not stand
for the proposition that the inclusion of an “affirmative affidavit or date showing that
the review took place before the statute of limitations expired” will entitle a plaintiff
to (1) amend her Rule 9(j) certification or (2) receive benefit of relation back under
Rule 15. In Thigpen, our Supreme Court simply did not address those questions, as
it noted in holding that discretionary review had been improvidently allowed as to
the issue “of whether a plaintiff who files a complaint without expert certification
pursuant to Rule 9(j) can cure that defect after the applicable statute of limitations
expires by amending the complaint as a matter of right and having that amendment
relate back to the date of the original complaint.” Id. at 204-05, 558 S.E.2d at 167.
Thus, Thigpen is inapposite to Vaughan’s appeal.
Instead, we conclude that this Court’s recent decisions in Alston v. Hueske, __
N.C. App. __, 781 S.E.2d 305 (2016) and Fintchre, supra, are dispositive and require
that we affirm the decision of the trial court in Vaughan’s case.
-9-
VAUGHAN V. MASHBURN
Opinion of the Court
In Alston, as here, we reviewed a trial court’s denial of a plaintiff’s motion to
amend her medical malpractice complaint to comply with the Rule 9(j) certification
requirement and the court’s resulting dismissal of the plaintiff’s entire action. Id. at
__, 781 S.E.2d at 307. The Alston plaintiff’s original complaint alleged compliance
with Rule 9(j) as follows:
29. Prior to commencing this action, the medical records
were reviewed and evaluated by a duly Board Certified [sic]
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 [to the] plaintiff by the defendant(s)
did not comply with the applicable standard of care.
Id. (emphasis added). This Rule 9(j) certification, like that in Vaughan’s original
complaint, did not track the statutory language. Like Vaughan, alerted to this defect
by the defendant’s answer and motion to dismiss after the expiration of the statute of
limitations, the plaintiff “requested leave to amend the pleadings in order to clearly
comply with Rule 9(j) . . . .” Id. “[T]he trial court denied the [plaintiff’s] request under
Rule 15(a). . . . reason[ing that] the legislature intended 9(j) be satisfied from the
beginning, at the time the complaint was filed.” Id.
On appeal, the plaintiff first argued that the trial court erred in dismissing the
complaint under “a hyper-technical reading of the rule [that] conflicts with the
- 10 -
VAUGHAN V. MASHBURN
Opinion of the Court
purpose of Rule 9(j), to prevent frivolous malpractice claims [because a] reading of
the whole record show[ed] that [the plaintiff’s] claim is not frivolous.” Id. at __, 781
S.E.2d at 310. We rejected this contention, noting that
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 [the] 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.
Id. In so holding, this Court noted that, due to the imprecise language of the
certification in the original complaint, the Court did “not have enough information to
evaluate whether this witness could reasonably be expected to qualify as an expert
in this case.” Id.
The Alston Court then considered the trial court’s denial of the plaintiff’s
motion to amend her original complaint so as to clarify her compliance with the
requirements of Rule 9(j). Citing Keith, the Court observed that, “[b]ecause 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)[,]”
- 11 -
VAUGHAN V. MASHBURN
Opinion of the Court
and that, further, “[b]ecause th[e] 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.” Id. at __, 781
S.E.2d at 310, 311.
Vaughan attempts to distinguish Alston from her own case by noting that,
unlike in Alston where the Court did “not have enough information to evaluate
whether th[e] witness could reasonably be expected to qualify as an expert[,]” id. at
__, 781 S.E.2d at 310, here the evidence is undisputed that Vaughan fully complied
with the review requirements of Rule 9(j) before the complaint was filed. However,
in affirming the trial court’s denial of the plaintiff’s motion to amend, the Alston Court
did not discuss or even mention the lack of clarity regarding whether the review
required by Rule 9(j) had actually been completed before the original complaint was
filed. See id. at __, 781 S.E.2d at 310-11. Likewise, the Court did not qualify its
holding that, where a “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.” Id. at __, 781 S.E.2d at 311.
In Fintchre, this Court also considered the interplay of Rule 9(j) and Rule 15.
In that matter, as in Vaughan’s case,
the trial court concluded that [the] plaintiff had failed to
file a complaint containing the required Rule 9(j)
certification within three years of the acts that caused her
alleged injuries based on [the] plaintiff’s failure to allege
- 12 -
VAUGHAN V. MASHBURN
Opinion of the Court
that all medical records pertaining to the alleged
negligence were reviewed by a person who [the] plaintiff
reasonably expected to qualify as an expert witness. The
trial court further concluded that [the] plaintiff’s motion to
amend the 9(j) certification in her second complaint . . . was
futile because the statute of limitations elapsed.
__ N.C. App. at __, 773 S.E.2d at 323 (internal quotation marks omitted). The
plaintiff conceded that the language of the Rule 9(j) certification was deficient, but
argued that,
because she complied with the substantive requirements of
Rule 9(j) before she filed her first action, filed her first
action within the statute of limitations, and filed her
second action within one year of taking a voluntary
dismissal of her first action, the trial court should have
granted her motion to amend the Rule 9(j) certification in
her second complaint.
Id. The Fintchre Court affirmed the trial court’s dismissal of that plaintiff’s action
based on the futility of her motion to amend:
Both complaints failed to allege that a person reasonably
expected to qualify as an expert had reviewed all available
medical records pertaining to the alleged negligence.
Because the second complaint was filed following the
expiration of the statute of limitations, [the] plaintiff must
rely on the first complaint in order to have timely filed her
medical malpractice action. We hold that where [the]
plaintiff failed to file a complaint including a valid Rule
9(j) certification within the statute of limitations, granting
[the] plaintiff’s motion to amend her second complaint
would have been futile, as the trial court found.
Fintchre, __ N.C. App. at __, 773 S.E.2d at 325 (emphasis added). As with Alston,
Vaughan draws our attention to distinctions between her case and Fintchre, namely:
- 13 -
VAUGHAN V. MASHBURN
Opinion of the Court
(1) that Fintchre concerned the amendment of a complaint after a voluntary dismissal
pursuant to Rule 41(a); and (2) that Vaughan, unlike the plaintiff in Fintchre, did not
file two complaints with non-conforming Rule 9(j) certifications, the second of which
was filed after notice of the first certification’s deficiency. As with the distinctions
Vaughan notes from Alston, we are not persuaded that these distinctions with
Fintchre played a meaningful role in the Court’s reasoning or holding. Indeed, as
noted in the concurring opinion in Fintchre, in that matter, as here, it was clear that
the plaintiff had actually complied with the substance of Rule 9(j) and that her
certification failure did not violate the intent of the rule:
[I]t is undisputed that [the] plaintiff complied with the
requirement that her medical care and records be reviewed
by a medical expert before her first complaint was filed and
that [the] defendants had notice of that fact. Thus, the
intent of Rule 9(j), to wit, requiring expert review of medical
malpractice claims to prevent frivolous lawsuits, was
plainly met before [the] plaintiff filed her first complaint.
The obvious failure of [the] plaintiff’s trial counsel to word
the Rule 9(j) certification of compliance as specified in the
statute is a highly technical failure which here results in
the dismissal of a medical malpractice case which is not
frivolous for the reasons Rule 9(j) is designed to prevent. I
am thus sympathetic with the position of [the] plaintiff,
who is thereby denied any opportunity to prove her claims
before a finder of fact. I question whether such a harsh and
pointless outcome was intended by our General Assembly
in enacting Rule 9(j).
Fintchre, __ N.C. App. at __, 773 S.E.2d at 327 (Stephens, J., concurring) (emphasis
in original).
- 14 -
VAUGHAN V. MASHBURN
Opinion of the Court
Nonetheless, in this appeal, Vaughan argues that the recent decision of this
Court in Boyd v. Rekuc, __ N.C. App. __, 782 S.E.2d 916, disc. review denied, __ N.C.
__, __ S.E.2d __ (2016), controls the outcome of her case and mandates that we reverse
the trial court’s dismissal. Because the opinion in Boyd addressed a different issue
than that presented in Vaughan’s appeal, we disagree.
In Boyd, this Court addressed the interplay between Rule 9(j) and Rule of Civil
Procedure 41(a), which
allows a plaintiff to dismiss any action voluntarily prior to
resting his case. . . . [and], where the dismissed action was
filed within the applicable statute of limitations, . . . [to]
commence a new action (based on the same claim) outside
of the applicable statute of limitations so long as the new
action is commenced within one year after the original
action was dismissed.
Id. at __, 782 S.E.2d at 917 (citation and emphasis omitted). After “the trial court
granted [the d]efendants’ motion to dismiss [the p]laintiff’s [second] complaint,
concluding that [it] was not filed within the applicable statute of limitations[,]” the
plaintiff timely appealed. Id. This Court reversed the trial court’s dismissal, holding
that
where a plaintiff voluntarily dismisses a medical
malpractice complaint which was timely filed in good faith
but which lacked a required Rule 9(j) certification, said
plaintiff may re-file the action after the expiration of the
applicable statute of limitations provided that (1) he files
his second action within the time allowed under Rule 41
and (2) the new complaint asserts that the Rule 9(j) expert
- 15 -
VAUGHAN V. MASHBURN
Opinion of the Court
review of the medical history and medical care occurred
prior to the filing of the original timely-filed complaint.
Id. (emphasis omitted). The Court reached this result after concluding that the “case
involve[d] the interplay between Rule 9(j) and Rule 41(a)(1) of our Rules of Civil
Procedure” and was “essentially ‘on all fours’ with our Supreme Court’s 2000 opinion
in Brisson v. Santoriello, 351 N.C. 589
, 528 S.E.2d 568 (2000).” Id.
In her motion, Plaintiff specifically cites the following language in Boyd,
purporting to summarize the holding of Brisson:
A medical malpractice complaint which fails to include the
required Rule 9(j) certification is subject to dismissal with
prejudice pursuant to Rule 9(j). Prior to any such dismissal,
however, said plaintiff may amend or refile (pursuant to
Rules 15 or 41, respectively) the complaint with the proper
Rule 9(j) certification. Further, if such subsequent
complaint is filed after the applicable statute of limitations
has expired but which otherwise complies with Rule 15 or
41, the subsequent complaint is not time-barred if it
asserts that the Rule 9(j) expert review occurred before the
original complaint was filed.
Id. at __, 782 S.E.2d at 918. This language in Boyd is both dictum and erroneous in
regard to the holding in Brisson. First, as noted supra, no issue regarding a Rule
15(a) amendment was before this Court in Boyd. Second, the Supreme Court did not
consider the interplay of Rules 9(j) and 15(a) in Brisson. The plaintiff in Brisson filed
a complaint lacking a proper Rule 9(j) certification, and the defendant moved to
dismiss on that basis. 351 N.C. at 591, 528 S.E.2d at 569. The plaintiff then filed a
- 16 -
VAUGHAN V. MASHBURN
Opinion of the Court
motion to amend the complaint per Rule 15(a), or in the alternative, to take a
voluntary dismissal per Rule 41(a). Id. at 592, 528 S.E.2d at 570. The trial court
denied the motion to amend, and the plaintiff subsequently took a voluntary
dismissal and later filed a second complaint with the proper Rule 9(j) certification.
Id. After the trial court dismissed the second complaint as barred by the statute of
limitations, the plaintiff appealed. Id. In its opinion, the Supreme Court stated:
We note at the outset that the Court of Appeals, in its
opinion, addressed at length the effects of [the] plaintiffs’
proposed amended complaint. We find that [the] plaintiffs’
motion to amend, which was denied, is neither dispositive
nor relevant to the outcome of this case. Whether the
proposed amended complaint related back to and
superceded the original complaint has no bearing on this
case once [the] plaintiffs took their voluntary dismissal on
6 October 1997. . . .
The only issue for us to review on appeal is whether [the]
plaintiffs’ voluntary dismissal pursuant to N.C.R. Civ. P.
41(a)(1) effectively extended the statute of limitations by
allowing [the] plaintiffs to refile their complaint against
defendants within one year, even though the original
complaint lacked a Rule 9(j) certification. We hold that it
does.
Id. at 593, 528 S.E.2d at 570 (emphasis added).3
Therefore, we must reject Vaughan’s assertion in her motion that
Boyd unequivocally holds that a plaintiff may amend a
medical malpractice complaint outside of the applicable
statute of limitations in order to truthfully allege
3 The Fintchre Court also noted this critical difference in distinguishing Brisson, upon which the
plaintiff in that case heavily relied with regard to her Rule 15(a) argument. See Fintchre, __ N.C. App.
at __, 773 S.E.2d at 323-24.
- 17 -
VAUGHAN V. MASHBURN
Opinion of the Court
compliance with Rule 9(j) where the requisite review
occurred prior to the filing of the first complaint. Further,
Boyd establishes that it is error for the trial court to deny
such an amendment based on futility.
The issue of amending complaints was simply not before this Court in Boyd, and thus
the opinion in that matter neither held nor established the points urged by Vaughan.
For the reasons discussed above, we are again compelled by precedent to reach
“a harsh and pointless outcome” as a result of “a highly technical failure” by
Vaughan’s trial counsel—the dismissal of a non-frivolous medical malpractice claim
and the “den[ial of] any opportunity to prove her claims before a finder of fact.”
Fintchre, __ N.C. App. at __, 773 S.E.2d at 327 (Stephens, J., concurring).
Conclusion
In sum, our case law establishes that, where a medical malpractice “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.” Alston, __ N.C. App. at __, 781 S.E.2d at 311 (emphasis added).
Thus, “where [a] plaintiff failed to file a complaint including a valid Rule 9(j)
certification within the statute of limitations, granting [the] plaintiff’s motion to
amend her second complaint would have been futile . . . .” Fintchre, __ N.C. App. at
__, 773 S.E.2d at 325 (emphasis added). The trial court’s conclusion that Vaughan’s
amendment would be futile was therefore correct under our established precedent
and not a misapprehension of law. As a result, we cannot conclude that the trial
- 18 -
VAUGHAN V. MASHBURN
Opinion of the Court
court’s denial of Vaughan’s motion to amend was an abuse of discretion. Accordingly,
the trial court’s order denying that motion and dismissing Vaughan’s medical
malpractice complaint must be affirmed. While we are sympathetic to the arguments
of Vaughan’s able appellate counsel and appreciate the highly technical nature of our
decision here, we are bound by our existing precedent. This Court simply does not
have the authority to rule otherwise.
AFFIRMED.
Judges BRYANT and McCULLOUGH concur.
- 19 -