Vaughan v. Mashburn

IN THE SUPREME COURT OF NORTH CAROLINA

No. 42PA17

Filed 17 August 2018

MARIA VAUGHAN

v.
LINDSAY MASHBURN, M.D. and LAKESHORE WOMEN’S SPECIALISTS, PC

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, ___ N.C. App. ___, 795 S.E.2d 781 (2016), affirming an order

entered on 27 August 2015 by Judge Stanley L. Allen in Superior Court, Iredell

County. Heard in the Supreme Court on 13 December 2017.

Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields and
Joshua D. Neighbors; Shapiro, Appleton & Duffan, P.C., by Kevin M. Duffan
and Richard N. Shapiro; and Collum & Perry, PLLC, by Travis E. Collum, for
plaintiff-appellant.

Parker Poe Adams & Bernstein LLP, by Chip Holmes and Bradley K. Overcash,
for defendant-appellees.

Law Office of D. Hardison Wood, by D. Hardison Wood; and Knott & Boyle
PLLC, by W. Ellis Boyle, for North Carolina Advocates for Justice, amicus
curiae.

Roberts & Stevens, P.A., by Phillip T. Jackson and Eric P. Edgerton, for North
Carolina Association of Defense Attorneys, amicus curiae.

HUDSON, Justice.
 VAUGHAN V. MASHBURN

Opinion of the Court

Here we are asked to decide whether a medical malpractice plaintiff may

amend a timely filed complaint to cure a defective Rule 9(j) certification after the

statute of limitations has run, when the expert review required by Rule 9(j) occurred

before the filing of the original complaint. The Court of Appeals concluded that Rule

9(j) does not permit a plaintiff to amend in these circumstances and affirmed the trial

court’s dismissal of plaintiff’s medical malpractice complaint. Vaughan v. Mashburn,

___ N.C. App. ___, 795 S.E.2d 781 (2016). Because we conclude that the procedures

plaintiff followed here are consistent with the letter and spirit of Rule 9(j), we reverse

the decision of the Court of Appeals and remand to the trial court for further

proceedings.

Background

On 3 May 2012, plaintiff underwent a laparoscopic hysterectomy at Lake

Norman Regional Medical Center in Mooresville, North Carolina. The operation was

performed by defendant Lindsay Mashburn, M.D., a physician who practices in the

area of obstetrics and gynecology and who is an employee of defendant Lakeshore

Women’s Specialists, PC. Plaintiff alleges that during this surgery defendant

Mashburn “inappropriately inflicted an injury and surgical wound to the Plaintiff’s

right ureter” resulting in “severe bodily injuries and other damages.”

In October 2014, plaintiff’s original counsel contacted Nathan Hirsch, M.D., a

specialist in obstetrics and gynecology who had performed approximately one

hundred laparoscopic hysterectomies, and provided Dr. Hirsch all of plaintiff’s

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Opinion of the Court

medical records pertaining to defendants’ alleged negligence. After reviewing these

records, Dr. Hirsch informed plaintiff’s counsel on 31 October 2014 that in his

opinion, the care and treatment rendered to plaintiff by defendants during and

following the 3 May 2012 operation violated the applicable standard of care and that

he was willing to testify to this effect.

Plaintiff filed a medical malpractice complaint against defendants on 20 April

2015 within the time afforded by the applicable statute of limitations, which expired

on 3 May 2015.1 In accordance with the special pleading requirements of section (j)

(“Medical malpractice”) of Rule 9 (“Pleading special matters”) of the North Carolina

Rules of Civil Procedure, plaintiff alleged in the complaint:

Plaintiff avers that the medical care received by [plaintiff]
complained of herein has been reviewed by persons who are
reasonably expected to qualify as expert witnesses under
Rule 702 of the North Carolina Rules of Evidence and who
are willing to testify that the medical care provided did not
comply with the applicable standard of care.

In making this assertion, however, plaintiff inadvertently used the certification

language of a prior version of Rule 9(j), which stated:

(j) Medical malpractice. — Any complaint alleging
medical malpractice by a health care provider as defined in
G.S. 90-21.11 in failing to comply with the applicable
standard of care under G.S. 90-21.12 shall be dismissed
unless:

(1) The pleading specifically asserts that the medical

1Pursuant to N.C.G.S. §§ 1-15(c) and 1-52, medical malpractice actions must be
brought within three years of the last allegedly negligent act of the physician.

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Opinion of the Court

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[.]

N.C.G.S. § 1A-1, Rule 9 (2009) (emphasis added). In 2011 the legislature amended

Rule 9(j), and the rule now provides, in pertinent part:

(j) Medical malpractice. — Any complaint alleging
medical malpractice by a health care provider pursuant to
G.S. 90-21.11(2)a. in failing to comply with the applicable
standard of care under G.S. 90-21.12 shall 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[.]

Id., Rule 9 (2017) (emphasis added); see also Act of June 13, 2011, ch. 400, sec. 3, 2011

N.C. Sess. Laws 1712, 1713. Thus, plaintiff’s Rule 9(j) certification omitted an

assertion that “all medical records pertaining to the alleged negligence that are

available to the plaintiff after reasonable inquiry” had been reviewed as required by

the applicable rule.

On 10 June 2015, defendant Mashburn filed a motion to dismiss under Rule

12(b)(6) of the North Carolina Rules of Civil Procedure, asserting that the complaint

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Opinion of the Court

failed “to state a claim upon which relief can be granted.” Two days later, defendants

filed an answer, which incorporated by reference defendant Mashburn’s motion to

dismiss. On 30 June 2015, plaintiff filed a motion for leave to file an amended

complaint under Rule 15(a) of the North Carolina Rules of Civil Procedure to “add[ ]

a single sentence to paragraph 21 of Plaintiff’s original Complaint that accurately

reflects the events that occurred prior to the filing of Plaintiff’s original Complaint,”

specifically that “all medical records pertaining to the alleged negligence that are

available to Plaintiff after reasonable inquiry have been reviewed before the filing of

this Complaint,” as required by Rule 9(j). In support of her motion for leave to file an

amended complaint, plaintiff submitted to the trial court an affidavit of her original

trial counsel, an affidavit of Dr. Hirsch, and her responses to defendants’ Rule 9(j)

interrogatories—all indicating that Dr. Hirsch reviewed plaintiff’s medical care and

related medical records before the filing of plaintiff’s original complaint.

Following a hearing on 10 August 2015, the trial court entered an order on 27

August granting defendants’ motion to dismiss, denying plaintiff’s motion for leave

to file an amended complaint, and dismissing plaintiff’s complaint with prejudice. In

its order the trial court stated:

1. Plaintiff’s Original Complaint, filed on 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 reasonable inquiry.

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Opinion of the Court

2. Plaintiff’s Motion for Leave to File an Amended
Complaint, filed on June 30, 2015, is denied as being futile
because the 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.

Plaintiff appealed from the trial court’s order to the Court of Appeals.

At the Court of Appeals plaintiff argued that the trial court’s ruling was

erroneous and that under this Court’s decision in Thigpen v. Ngo, 355 N.C. 198, 558

S.E.2d 162 (2002), a plaintiff may amend a defective Rule 9(j) certification and receive

the benefit of relation back under Rule 15(c) so long as there is evidence “the review

occurred before the filing of the original complaint.” The Court of Appeals disagreed,

noting that Thigpen was inapposite because the Court in that case did not address

the issue of relation back under Rule 15(c). Vaughan, ___ N.C. App. at ___, 795 S.E.2d

at 784-85. Relying instead on its own precedent in Alston v. Hueske, 244 N.C. App.

546, 781 S.E.2d 305 (2016), and Fintchre v. Duke University, 241 N.C. App. 232, 773

S.E.2d 318 (2015), the Court of Appeals determined that it was “again compelled by

precedent to reach ‘a harsh and pointless outcome’ as a result of ‘a highly technical

failure’ by [plaintiff’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.’ ” Id. at ___, 795 S.E.2d at 788 (quoting Fintchre, 241 N.C. App. at 246,

773 S.E.2d at 327 (Stephens, J., concurring)). The court held that “where a medical

malpractice ‘plaintiff did not file the complaint with the proper Rule 9(j) certification

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Opinion of the Court

before the running of the statute of limitation, the complaint cannot have been deemed

to have commenced within the statute.’ ” Id. at ___, 795 S.E.2d at 788 (quoting Alston,

244 N.C. App. at 554, 781 S.E.2d at 311 (emphases added)). Accordingly, the Court

of Appeals affirmed the ruling of the trial court. Id. at ___, 795 S.E.2d at 788-89.

Plaintiff filed a petition for discretionary review, which this Court allowed on

16 March 2017.

Analysis

Plaintiff argues that she should be permitted to amend her medical

malpractice complaint under Rule 15(a) to correct a purely technical pleading error

when doing so would enable the plaintiff to truthfully allege compliance with Rule

9(j) before both the filing of the initial complaint and the expiration of the statute of

limitations. Further, plaintiff contends that such an amendment can relate back

under Rule 15(c) so as to survive a motion to dismiss pursuant to Rule 9(j) and the

applicable statute of limitations. We agree.

The outcome of this case hinges on the interaction between N.C.G.S. § 1A-1,

Rule 9(j), as set forth above, and N.C.G.S. § 1A-1, Rule 15, which governs

amendments to pleadings. “Statutes dealing with the same subject matter must be

construed in pari materia and harmonized, if possible, to give effect to each.” Bd. of

Adjust. v. Town of Swansboro, 334 N.C. 421, 427, 432 S.E.2d 310, 313 (1993) (citing

Jackson v. Guilford Cty. Bd. of Adjust., 275 N.C. 155, 167, 166 S.E.2d 78, 86 (1969)).

Rule 15 provides, in pertinent part:

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Opinion of the Court

(a) Amendments. — 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 adverse party; and leave
shall be freely given when justice so requires. A party shall
plead in response to an amended pleading within 30 days
after service of the amended pleading, unless the court
otherwise orders.

....

(c) Relation back of amendments. — 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.G.S. § 1A-1, Rule 15 (2017). “A motion to amend is addressed to the discretion

of the trial court.” Henry v. Deen, 310 N.C. 75, 82, 310 S.E.2d 326, 331 (1984). When

the trial court’s ruling is based on a misapprehension of law, the order will be vacated

and the case remanded to the trial court for further proceedings. See Concerned

Citizens of Brunswick Cty. Taxpayers Ass’n v. State ex rel. Rhodes, 329 N.C. 37, 54-

55, 404 S.E.2d 677, 688 (1991) (“When the order or judgment appealed from was

entered under a misapprehension of the applicable law, the judgment, including the

findings of fact and conclusions of law on which the judgment was based, will be

vacated and the case remanded for further proceedings.” (citing Davis v. Davis, 269

N.C. 120, 127, 152 S.E.2d 306, 312 (1967))). While “[a] judge’s decision in this matter

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will not be reversed on appeal absent a showing of abuse of discretion[,] . . .

amendments should be freely allowed unless some material prejudice to the other

party is demonstrated.” Mauney v. Morris, 316 N.C. 67, 72, 340 S.E.2d 397, 400

(1986) (first citing Henry, 310 N.C. at 82, 310 S.E.2d at 331; then citing Mangum v.

Surles, 281 N.C. 91, 98-99, 187 S.E.2d 697, 702 (1972)); see also id. at 72, 340 S.E.2d

at 400 (“The burden is upon the opposing party to establish that that party would be

prejudiced by the amendment.” (first citing Roberts v. Reynolds Mem’l Park, 281 N.C.

48, 58-59, 187 S.E.2d 721, 727 (1972); then citing Vernon v. Crist, 291 N.C. 646, 654,

231 S.E.2d 591, 596 (1977))).

This “liberal amendment process” under Rule 15 “complements the concept of

notice pleading embodied in Rule 8,” 1 G. Gray Wilson, North Carolina Civil

Procedure § 15-1, at 15-2 to 15-3 (3d ed. 2007) [hereinafter Wilson, Civil Procedure],

and reflects the legislature’s intent “that decisions be had on the merits and not

avoided on the basis of mere technicalities,” Mangum, 281 N.C. at 99, 187 S.E.2d at

702 (citation omitted); see also Roberts, 281 N.C. at 56, 187 S.E.2d at 725 (“The new

Rules achieve their purpose of insuring a speedy trial on the merits of a case by

providing for and encouraging liberal amendments to conform pleadings and evidence

under Rule 15(a), by pretrial order under Rule 16, during and after reception of

evidence under Rule 15(b), and after entry of judgment under Rules 15(b), 59 and

60.”). “There is no more liberal canon in the rules than that leave to amend ‘shall be

freely given when justice so requires.’ ” Wilson, Civil Procedure § 15-3, at 15-5.

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Opinion of the Court

In addressing the applicability of Rule 15 in the context of a medical

malpractice complaint, we must also consider the legislative intent behind Rule 9(j).

See Brown v. Kindred Nursing Ctrs. E., L.L.C., 364 N.C. 76, 80, 692 S.E.2d 87, 89

(2010) (concluding that in addressing “the extent to which Rule 9(j) allows a party to

amend a deficient medical malpractice complaint[,] . . . the specific policy objectives

embodied in Rule 9(j) must be considered”).

“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.”

Moore v. Proper, 366 N.C. 25, 31, 726 S.E.2d 812, 817 (2012) (citing Thigpen, 355 N.C.

at 203-04, 558 S.E.2d at 166); see also Minutes of N.C. House Select Comm. on Tort

Reform, Hearing on H. 636 & H. 730, 1995 Reg. Sess. (Apr. 19, 1995) [hereinafter

Hearing] (comments by Rep. Charles B. Neely, Jr.) (explaining that “[t]he bill

attempts to weed out law suits which are not meritorious before they are filed”

(emphasis added)). As the caption of the 1995 legislation states, see Act of June 20,

1995, ch. 309, 1995 N.C. Sess. Laws 611, 611 (“An Act to Prevent Frivolous Medical

Malpractice Actions by Requiring that Expert Witnesses in Medical Malpractice

Cases Have Appropriate Qualifications to Testify on the Standard of Care at Issue

and to Require Expert Witness Review as a Condition of Filing a Medical Malpractice

Action”), the rule seeks to accomplish its purpose in two ways:

First, the legislature mandated that an expert witness
must review the conduct at issue and be willing to testify
at trial that it amounts to malpractice before a lawsuit may

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be filed. Second, the legislature limited the pool of
appropriate experts to those who spend most of their time
in the profession teaching or practicing.

Moore, 366 N.C. at 37, 726 S.E.2d at 820 (Newby, J., concurring in part and

concurring in the result) (citing ch. 309, secs. 1, 2, 1995 N.C. Sess. Laws at 611-13).

Thus, the rule averts frivolous actions by precluding any filing in the first place by a

plaintiff who is unable to procure an expert who both meets the appropriate

qualifications and, after reviewing the medical care and available records, is willing

to testify that the medical care at issue fell below the standard of care.

The Court of Appeals correctly noted that this Court has not addressed, in

Thigpen or in any other case, the precise issue raised here involving the interplay

between Rule 15 and Rule 9(j). We find our previous decisions, particularly Brisson

v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 528 S.E.2d 568 (2000), instructive

in resolving the question presented here.

In Brisson the plaintiffs’ claims stemmed from injuries allegedly sustained

during an abdominal hysterectomy performed on the female plaintiff on 27 July 1994.

351 N.C. at 591-92, 528 S.E.2d at 569. The plaintiffs filed a timely medical

malpractice action on 3 June 1997 but failed to include a Rule 9(j) expert certification

in their complaint. Id. at 591-92, 528 S.E.2d at 569. On the basis of this defect, the

defendants moved to dismiss the plaintiffs’ complaint. Id. at 591-92, 528 S.E.2d at

569. The plaintiffs then filed a motion to amend their complaint, along with an

attached affidavit of their counsel, asserting that “a physician has reviewed the

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subject medical care, but it was inadvertently omitted from the pleading.” Id. at 592,

528 S.E.2d at 569-70. The plaintiffs also filed a motion in the alternative to

voluntarily dismiss their complaint without prejudice under Rule 41(a)(1) of the

North Carolina Rules of Civil Procedure. Id. at 592, 528 S.E.2d at 570. After the

trial court denied the plaintiffs’ motion to amend but reserved ruling on the

defendants’ motion to dismiss, the plaintiffs voluntarily dismissed their claims

against defendants under Rule 41(a)(1) on 6 October 1997. Id. at 592, 528 S.E.2d at

570.

Similar to Rule 15(c)’s “relation back” provision, Rule 41(a)(1) includes a one-

year “saving provision” for voluntary dismissals, providing that “[i]f an action

commenced within the time prescribed therefor, or any claim therein, is dismissed

without prejudice under this subsection, a new action based on the same claim may

be commenced within one year after such dismissal.” N.C.G.S. § 1A-1, Rule 41(a)(1)

(2017). Thus, “a plaintiff may ‘dismiss an action that originally was filed within the

statute of limitations and then refile the action after the statute of limitations

ordinarily would have expired.’ ” Brisson, 351 N.C. at 594, 528 S.E.2d at 571 (quoting

Clark v. Visiting Health Prof’ls, Inc., 136 N.C. App. 505, 508, 524 S.E.2d 605, 607,

disc. rev. denied, 351 N.C. 640, 543 S.E.2d 867 (2000)).

Accordingly, within one year of their voluntary dismissal, the plaintiffs filed a

new complaint on 9 October 1997 that included the Rule 9(j) certification. Id. at 592,

528 S.E.2d at 570. The defendants filed an answer and moved for judgment on the

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pleadings, asserting that the plaintiffs’ claims were barred by the statutes of

limitations and repose. Id. at 592, 528 S.E.2d at 570. The trial court entered an order

granting the defendants’ motion for judgment on the pleadings, ruling that the

plaintiffs’ original 3 June 1997 complaint “d[id] not extend the statute of limitations

in this case because it d[id] not comply with Rule 9(j)” and that the subsequent 9

October 1997 complaint was barred by the statute of limitations. Id. at 592, 528

S.E.2d at 570. After the Court of Appeals reversed the trial court’s ruling, this Court

granted the defendants’ petition for discretionary review. Id. at 593, 528 S.E.2d at

570.

We first noted that the plaintiffs’ voluntary dismissal under Rule 41(a)(1)

rendered the plaintiffs’ motion to amend “neither dispositive nor relevant to the

outcome of this case” and that the sole issue was whether the voluntary dismissal

under Rule 41(a)(1) “effectively extended the statute of limitations by allowing

plaintiffs to refile their complaint against defendants within one year, even though

the original complaint lacked a Rule 9(j) certification.” Id. at 593, 528 S.E.2d at 570.

In resolving this issue, we rejected the defendants’ contention that the plaintiffs’

failure to comply with Rule 9(j) in their first complaint rendered the one-year “saving

provision” of Rule 41(a)(1) inapplicable. Id. at 594, 528 S.E.2d at 571. Regarding the

interplay between Rule 41(a)(1) and Rule 9(j), we concluded:

This Court has repeatedly stated that “[s]tatutes
dealing with the same subject matter must be construed in
pari materia and harmonized, if possible, to give effect to

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each.” Board of Adjust. v. Town of Swansboro, 334 N.C.
421, 427, 432 S.E.2d 310, 313 (1993). On these facts, we
must look to our Rules of Civil Procedure and construe Rule
9(j) along with Rule 41. Although Rule 9(j) clearly requires
a complainant of a medical malpractice action to attach to
the complaint specific verifications regarding an expert
witness, the rule does not expressly preclude such
complainant’s right to utilize a Rule 41(a)(1) voluntary
dismissal. Had the legislature intended to prohibit
plaintiffs in medical malpractice actions from taking
voluntary dismissals where their complaint did not include
a Rule 9(j) certification, then it could have made such
intention explicit. In this case, the plain language of Rule
9(j) does not give rise to an interpretation depriving
plaintiffs of the one-year extension pursuant to their Rule
41(a)(1) voluntary dismissal merely because they failed to
attach a Rule 9(j) certification to the original complaint.
“[T]he absence of any express intent and the strained
interpretation necessary to reach the result urged upon us
by [defendants] indicate that such was not [the
legislature’s] intent.” Sheffield v. Consolidated Foods
Corp., 302 N.C. 403, 425, 276 S.E.2d 422, 436 (1981).

Id. at 595, 528 S.E.2d at 571. Accordingly, we determined that the plaintiffs’

voluntary dismissal of their original 3 June 1997 complaint—though it lacked a

proper Rule 9(j) expert certification—extended for one year the statute of limitations

pursuant to Rule 41(a)(1) and rendered the plaintiffs’ subsequent 9 October 1997

complaint timely filed. Id. at 597, 528 S.E.2d at 573. In closing, we noted that our

decision

merely harmonizes the provisions of Rules 9(j) and 41(a).
A frivolous malpractice claim with no expert witness
pursuant to Rule 9(j) still meets the ultimate fate of
dismissal. Likewise, a meritorious complaint will not be
summarily dismissed without benefit of Rule 41(a)(1),
simply because of an error by plaintiffs’ attorney in failing

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to attach the required certificate to the complaint pursuant
to Rule 9(j).

Id. at 598, 528 S.E.2d at 573. Regarding the additional issue of 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 satisf[ies] the

requirements of Rule 9(j),” we concluded that discretionary review was improvidently

allowed. Id. at 597, 528 S.E.2d at 573. That issue subsequently arose in Thigpen.

In Thigpen the alleged medical malpractice occurred in June 1996. 355 N.C.

at 199, 558 S.E.2d at 163. Rule 9(j) allows a plaintiff, before expiration of the statute

of limitations, to file “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.” N.C.G.S. § 1A-1, Rule 9(j). In accordance with this provision, on 8

June 1999, before the expiration of the three-year statute of limitations, the plaintiff

filed a motion to extend the statute of limitations for 120 days in order to file a

complaint. Thigpen, 355 N.C. at 199, 558 S.E.2d at 163. The trial court granted the

plaintiff’s motion and entered an order extending the statute of limitations through

6 October 1999. Id. at 199, 558 S.E.2d at 164.

On the final day of the extended deadline, the plaintiff filed her medical

malpractice complaint but failed to include the Rule 9(j) expert certification. Id. at

200, 558 S.E.2d at 164. On 12 October 1999, six days after the extended statute of

limitations had expired, the plaintiff filed an amended complaint “including a

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certification that the ‘medical care has been reviewed’ by someone who would qualify

as an expert.” Id. at 200, 558 S.E.2d at 164. The defendants then filed motions to

dismiss on the basis that the plaintiff’s amended complaint was not filed before

expiration of the extended statute of limitations. Id. at 200, 558 S.E.2d at 164. The

trial court granted the defendants’ motions and dismissed with prejudice the

plaintiff’s complaint, finding that “Plaintiff’s original Complaint did not contain a

certification that the care rendered by Defendants had been reviewed by an expert

witness reasonably expected to testify that the care rendered to Plaintiff did not

comply with the applicable standard of care as required by Rule 9(j).” Id. at 200, 558

S.E.2d at 164. After a split decision of the Court of Appeals, in which the majority

reversed the trial court, the defendants appealed to this Court. Id. at 198-99, 200,

558 S.E.2d at 163-64.

As an initial matter, we determined that “the interplay between Rule 9(j) and

Rule 15” was “neither dispositive nor relevant to th[e] case” and further, that Brisson

was factually distinguishable and therefore inapposite. Id. at 200-01, 558 S.E.2d at

164. We then noted that

[t]he General Assembly added subsection (j) of Rule
9 in 1995 pursuant to chapter 309 of House Bill 730,
entitled, “An Act to Prevent Frivolous Medical Malpractice
Actions by Requiring that Expert Witnesses in Medical
Malpractice Cases Have Appropriate Qualifications to
Testify on the Standard of Care at Issue and to Require
Expert Witness Review as a Condition of Filing a Medical
Malpractice Action.” Act of June 20, 1995, ch. 309, 1995
N.C. Sess. Laws 611. The legislature specifically drafted

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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.

Id. at 203-04, 558 S.E.2d at 166. Because the plaintiff’s original complaint failed to

comply with Rule 9(j), we concluded that the trial court correctly dismissed the

complaint.

Next, we addressed an issue for which we granted discretionary review (and

for which we concluded discretionary review had been improvidently allowed in

Brisson)—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).” Id. at 204, 558 S.E.2d at 166.

Consistent with our prior discussion of legislative intent, we held that it does not. Id.

at 204, 558 S.E.2d at 166. Specifically, we determined that

[t]o survive dismissal, the pleading must “specifically
assert[ ] that the medical care has been reviewed.” N.C.G.S.
§ 1A-1, Rule 9(j), para. 1(1), (2) (emphasis added).
Significantly, the rule refers to this mandate twice (in
subsections (1) and (2)), and in both instances uses the past
tense. Id. 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,
plaintiff simply alleged that “[p]laintiff’s medical care has

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been reviewed by a person who is reasonably expected to
qualify as an expert witness.” (Emphasis added.) 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).

Id. at 204, 558 S.E.2d at 166-67. Thus, Thigpen emphasizes that because expert

review is a condition of initiating a medical malpractice action in the first place, the

review must occur before the filing of an original complaint.2 Because the plaintiff’s

proposed amended complaint still failed to comply with Rule 9(j), it was unnecessary

to address whether the amended complaint—had it been in compliance—could have

received the benefit of relating back to the filing date of the original complaint under

Rule 15(c). Accordingly, we concluded that discretionary review was improvidently

allowed regarding 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

2 We again emphasized the necessity of the expert review occurring before filing in
Brown, in which the plaintiff filed his complaint first and then attempted to utilize Rule 9(j)’s
120-day extension in order to conduct the expert review. See Brown, 364 N.C. at 80, 692
S.E.2d at 90 (“[P]laintiff’s sole reason for requesting an extension of the statute of limitations
is inconsistent with the General Assembly’s purpose behind enacting Rule 9(j). Here, plaintiff
did not move for a 120-day extension to locate a certifying expert before filing his complaint.
Rather, plaintiff alleged malpractice first and then sought to secure a certifying expert. This
is the exact course of conduct the legislature sought to avoid in enacting Rule 9(j).”).

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having that amendment relate back to the date of the original complaint.” Id. at 204-

05, 558 S.E.2d at 167.

That latter issue is similar in significant respect to the one raised here, though

the proposed amended complaint in Thigpen was attempted as “a matter of course,”

whereas plaintiff here sought to amend “by leave of court,” which, as previously noted,

“shall be freely given when justice so requires.” N.C.G.S. § 1A-1, Rule 15(a). With

that “liberal canon” in mind, we now conclude that much of the rationale behind our

decision in Brisson is similarly applicable here and, in conjunction with the legislative

intent behind Rules 15 and 9(j), leads to a result that is consistent with Thigpen and

was forecast in part by our discussion in that case. See, e.g., Thigpen, 355 N.C. at

204, 558 S.E.2d at 166 (“[P]ermitting 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. . . . 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.”).

Our conclusion in Brisson that “the plain language of Rule 9(j) does not give

rise to an interpretation depriving plaintiffs of the one-year extension pursuant to

their Rule 41(a)(1) voluntary dismissal merely because they failed to attach a Rule

9(j) certification to the original complaint,” 351 N.C. at 595, 528 S.E.2d at 571, has

similar application here. Just as Rule 9(j) “does not expressly preclude such

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complainant’s right to utilize a Rule 41(a)(1) voluntary dismissal,” id. at 595, 528

S.E.2d at 571, Rule 9(j) does not preclude plaintiff’s right to utilize a Rule 15(a)

amended complaint or her right to have the amended complaint relate back to the

date of the original filing under Rule 15(c). As we noted in Brisson, “[h]ad the

legislature intended to prohibit plaintiffs in medical malpractice actions from” filing

an amended complaint and receiving the benefit of relation back under Rule 15(c),

“then it could have made such intention explicit.” Id. at 595, 528 S.E.2d at 571.

Further, “[t]he absence of any express intent and the strained interpretation

necessary to reach the result urged upon us by [defendants] indicate that such was

not [the legislature’s] intent.” Id. at 595, 528 S.E.2d at 571 (quoting Sheffield, 302

N.C. at 425, 276 S.E.2d at 436). Moreover, we find persuasive that when the

legislature amended Rule 9(j) in 2001, Act of May 17, 2001, ch. 121, sec. 1, 2001 N.C.

Sess. Laws 232, 232-33, and again in 2011, more than a decade after Brisson, ch. 400,

sec. 3, 2011 N.C. Sess. Laws at 1713, it did not include any amendments rejecting

that decision. See Brown, 364 N.C. at 83, 692 S.E.2d at 91-92 (“ ‘The legislature’s

inactivity in the face of the Court’s repeated pronouncements’ on an issue ‘can only

be interpreted as acquiescence by, and implicit approval from, that body.’ ” (quoting

Rowan Cty. Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1, 9, 418 S.E.2d 648, 654

(1992))). Similar to Brisson, we reject defendants’ contention here that the defect in

plaintiff’s Rule 9(j) certification in her original, timely filed complaint failed to “toll”

the statute of limitations, thereby depriving plaintiff of relation back under Rule

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Opinion of the Court

15(c). Accordingly, we conclude that a plaintiff in a medical malpractice action may

file an amended complaint under Rule 15(a) to cure a defect in a Rule 9(j) certification

when the expert review and certification occurred before the filing of the original

complaint. Further, such an amended complaint may relate back under Rule 15(c).

We again emphasize that in a medical malpractice action the expert review

required by Rule 9(j) must occur before the filing of the original complaint. This pre-

filing expert review achieves the goal of “weed[ing] out law suits which are not

meritorious before they are filed.” Hearing (comments by Rep. Neely). But when a

plaintiff prior to filing has procured an expert who meets the appropriate

qualifications and, after reviewing the medical care and available records, is willing

to testify that the medical care at issue fell below the standard of care, dismissing an

amended complaint would not prevent frivolous lawsuits. Further, dismissal under

these circumstances would contravene the principle “that decisions be had on the

merits and not avoided on the basis of mere technicalities.” Mangum, 281 N.C. at 99,

187 S.E.2d at 702. As in Brisson, our decision “merely harmonizes” the provisions of

Rule 9(j) and Rule 15. 351 N.C. at 598, 528 S.E.2d at 573. “A frivolous malpractice

claim with no expert witness pursuant to Rule 9(j) still meets the ultimate fate of

dismissal. Likewise, a meritorious complaint will not be summarily dismissed

without benefit of Rule [15], simply because of an error by [plaintiff’s] attorney in

failing to attach the required certificate to the complaint pursuant to Rule 9(j).” Id.

at 598, 528 S.E.2d at 573.

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Here plaintiff alleged in her 20 April 2015 complaint that the expert review of

the “medical care” had occurred as required by Rule 9(j) but failed to assert that “all

medical records pertaining to the alleged negligence that are available to the plaintiff

after reasonable inquiry” had been included in that review. After the statute of

limitations expired on 3 May 2015, plaintiff filed a motion to amend by leave of court

in order to correct her defective Rule 9(j) certification and assert that “all medical

records pertaining to the alleged negligence that are available to Plaintiff after

reasonable inquiry” had been reviewed before the filing of the original complaint. In

support of her motion for leave to file an amended complaint, plaintiff submitted to

the trial court an affidavit of her original trial counsel, an affidavit of her medical

expert, Dr. Hirsch, and her responses to defendants’ Rule 9(j) interrogatories—all

indicating that Dr. Hirsch reviewed plaintiff’s medical care and related medical

records before the filing of plaintiff’s original complaint. Defendants do not contend

that anything in the record indicates that the expert review did not take place before

the filing of the original complaint. Because plaintiff’s amended complaint corrected

a technical pleading error and made clear that the expert review required by Rule

9(j) occurred before the filing of the original complaint, the amended complaint

complied with Rule 9(j) and may properly relate back to the date of the original

complaint under Rule 15(c). Accordingly, the trial court’s denial of plaintiff’s motion

to amend as being futile was based on a misapprehension of law. The decision of the

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Court of Appeals to the contrary is reversed, and this case is remanded for further

proceedings.

As a final matter, this Court allowed discretionary review of the issue of

whether “the trial court abuse[d] its discretion in denying [plaintiff’s] motion to

amend when [plaintiff] filed a motion to amend within 120 days of the expiration of

the statute of limitations, and verified by affidavits that her proposed Rule 9(j)

certification factors all had occurred inside the statute of limitations.” As to this

issue, we hold that discretionary review was improvidently allowed.

REVERSED AND REMANDED; DISCRETIONARY REVIEW

IMPROVIDENTLY ALLOWED IN PART.

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