IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-742
Filed: 4 August 2020
Cumberland County, No. 16-CVS-3205
MARTIN LEONARD, Plaintiff,
v.
RONALD BELL, M.D., INDIVIDUALLY, PHILLIP STOVER, M.D.,
INDIVIDUALLY, Defendants.
Appeal by plaintiff from order entered 22 January 2019 by Judge Beecher R.
Gray in Superior Court, Cumberland County. Heard in the Court of Appeals 3 March
2020.
Knott & Boyle, PLLC, by Ben Van Steinburgh and W. Ellis Boyle, for plaintiff-
appellant.
Hedrick Gardner Kincheloe & Garofalo, LLP, by M. Duane Jones and Luke P.
Sbarra, for defendant-appellee Bell.
Attorney General Joshua H. Stein, by Assistant Attorney General Kenzie M.
Rakes, for defendant-appellee Stover.
STROUD, Judge.
Martin Leonard (“Plaintiff”) appeals from an order granting Ronald Bell,
M.D.’s and Phillip Stover, M.D.’s (collectively “Defendants”) motions to dismiss
Plaintiff’s complaint with prejudice. Viewing the record “in the light most favorable
to plaintiff,” Preston v. Movahed, ___ N.C. ___, ___, 840 S.E.2d 174, 190 (2020),
because Plaintiff’s medical expert reviewed all the medical records pertaining to the
LEONARD V. BELL
Opinion of the Court
alleged negligence available to Plaintiff after reasonable inquiry prior to filing his
complaint, we conclude at the time of the filing of the complaint, Plaintiff had
complied with the requirements of North Carolina General Statute § 1A-1, Rule 9(j).
The production by Defendants’ employer, the North Carolina Department of Public
Safety, Division of Adult Corrections (“DAC”), of additional records regarding
Plaintiff’s medical care four years after the filing of the complaint does not defeat
Plaintiff’s complaint under Rule 9(j), particularly where the records produced were
responsive to Plaintiff’s first request for records in 2013 but were not produced until
years later. We therefore reverse the trial court’s order dismissing Plaintiff’s
complaint and remand for further proceedings.
I. Procedural and Factual Background
This case was appealed to this Court previously. Leonard v. Bell, 254 N.C. App.
694, 803 S.E.2d 445 (2017). Defendants appealed the trial court’s denial of their
motion to dismiss based upon public official immunity, and this Court affirmed. This
Court set out the background of this case as follows:
Martin Leonard (“plaintiff”) initiated this case
against defendants in their individual capacities with the
filing of summonses and a complaint on 5 May 2016. In the
complaint, plaintiff asserts negligence claims against Dr.
Bell and Dr. Stover, both physicians employed by the
Department of Public Safety (“DAC”), albeit in different
capacities. Those claims are based on allegations that Dr.
Bell and Dr. Stover failed to meet the requisite standard of
care for physicians while treating plaintiff, who at all
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Opinion of the Court
relevant times was incarcerated in the Division of Adult
Correction (the “DAC”).
Specifically, plaintiff alleges that he began
experiencing severe back pain in late October 2012 and
submitted the first of many requests for medical care. Over
the next ten months, plaintiff was repeatedly evaluated in
the DAC system by nurses, physician assistants, and Dr.
Bell in response to plaintiff’s complaints of increasing back
pain and other attendant symptoms. Dr. Bell personally
evaluated plaintiff nine times and, at the time of the
seventh evaluation in June 2013, submitted a request for
an MRI to the Utilization Review Board (the “Review
Board”). Dr. Stover, a member of the Review Board, denied
Dr. Bell’s request for an MRI and instead recommended
four weeks of physical therapy. Plaintiff continued to
submit requests for medical care as his condition worsened.
Upon further evaluations by a nurse and a physician
assistant in August 2013, the physician assistant sent
plaintiff to Columbus Regional Health Emergency
Department for treatment. Physicians at Columbus
Regional performed an x-ray and an MRI. Those tests
revealed plaintiff was suffering from an erosion of bone in
the L4 and L3 vertebra and a spinal infection. Plaintiff
asserts Dr. Bell’s failure to adequately evaluate and treat
his condition, and Dr. Stover’s refusal of requested
treatment, amounts to medical malpractice.
Id. at 695–96, 803 S.E.2d at 447.
Prior to filing the complaint, Plaintiff requested all his medical records from
many medical providers and provided these to Dr. Parker McConville to review. On
27 November 2013, Plaintiff made his first request for medical records to DAC and
requested “[a]ll medical records, declarations of medical emergencies, sick call filings,
and grievances” from “January 1, 2012-Present.” Dr. McConville initially reviewed
the medical records in April 2014 and then received additional records in April 2016.
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Opinion of the Court
He reviewed medical and imaging records from UNC Health Care, Rex Healthcare,
Columbus Regional Healthcare, FirstHealth Moore Regional Hospital, Southeastern
Regional, Southeastern Health, Wilmington Health Associates, New Hanover
Regional Hospital, and DAC. Thus, Plaintiff’s initial request for medical records
extended back ten months prior to plaintiff’s first visit to Defendant Bell. Plaintiff
received 512 pages of medical records in response to his initial request, and Dr.
McConville reviewed all these records before Plaintiff filed his complaint.
On 5 May 2016, Plaintiff filed the medical malpractice complaint, with the Rule
9(j) certification based upon Dr. McConville’s review of all the medical records noted
above. On or about 14 October 2016, Plaintiff served his First Request for Production
upon Dr. Bell and requested
[a]ll medical records of any sort in your possession,
regarding any health care provider’s medical treatment or
care of Martin Leonard, including but not limited to: duty
log or schedule of when you were on call or physically
present at the Prison in 2012 and 2013; all medical billing
statements, medical charts, physician’s office records,
correspondence to or from any person, entity or
organization; all hospital or medical records regularly
maintained concerning patients such as physicians’ notes,
nurse or staffing logs, nursing administration reports,
incident/occurrence report forms, shift records, psychiatry
flow sheets, patient data logs, medication administration
logs, physical/occupational therapy notes, nursing notes,
and handwritten notes; all orders requesting any
laboratory study or test or imaging; all laboratory reports;
all radiological images in electronic format and
corresponding reports to include MRIs, CT Scans, and
photographs; all medication and prescription records; all
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Opinion of the Court
surgical and pathology reports; all medical reports
furnished routinely or specially to any person,
organization, or entity including the patient, any
representative of the patient, or any insurance company;
and any record of any conversations, correspondence, or
emails with any pathologists or other employee or agent of
North Carolina Department of Public Safety.
Dr. Bell responded, “The only medical records related to Plaintiff that are in Dr. Bell’s
possession were produced by Plaintiff’s counsel in connection with the pending
Industrial Commission matter related to Plaintiff’s claims.”1
On 17 October 2016, Plaintiff served his First Request for Production of
documents on Dr. Stover, requesting the same information as the request to Dr. Bell.
On 20 September 2017, Dr. Stover responded as follows:
Objection: This request is overly broad, unduly
burdensome and not relevant to this matter. Seeks
information not reasonably calculated to lead to the
discovery of admissible [sic]. This request seeks matters
and/or documents protected by the work product doctrine
and/or attorney client privilege. As discovery proceeds in
this case, Defendant will supplement this response to the
extent appropriate under the North Carolina Rule of Civil
Procedure.
(Alteration in original.)
1 Plaintiff had also instituted a Tort Claims action before the Industrial Commission arising from the
same alleged negligence. At oral argument of this case, counsel noted that the Industrial Commission
matter was stayed pending resolution of this case. The record from Defendant’s first appeal contains
the order staying the Industrial Commission proceedings, and it states in relevant part: “1. The above-
captioned action under the State Tort Claim Act is STAYED pending the resolution of the civil action
in the General Court of Justice in Columbus County, save discovery. 2. The above captioned case is
REMOVED from the active hearing docket and all further proceedings.”
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Opinion of the Court
Defendants then filed motions to dismiss “pursuant to Rule 12(b)(1), (2), and
(6)” addressed in their first appeal. Leonard v. Bell, 254 N.C. App. at 696, 803 S.E.2d
at 447. The trial court denied the motions on 25 October 2016 and both defendants
appealed. Id. This Court’s opinion in the prior appeal was filed in August 2017, and,
upon remand, discovery resumed.
On or about 11 April 2018, Plaintiff served a subpoena upon DAC requesting
production of his medical records. Our record does not reveal if DAC itself responded
directly to the subpoena, but soon after the subpoena, Dr. Stover supplemented his
September 2017 discovery responses.2 On 19 June 2018, Dr. Stover sent a
supplemental document production to Plaintiff including 1172 pages of prison and
medical records. Of these documents, 354 pages were some of the same medical
records produced in December 2013 by DAC in response to Plaintiff’s request prior to
filing the complaint, but Dr. Stover provided an additional 818 pages of records from
DAC. In their arguments before the trial court and this Court, Defendants stressed
one of these 818 pages of documents included in the new information was a sheet
recording Plaintiff’s TB skin tests over several years.3 This document, a “North
2 Since both Defendants are employees of DAC, these documents may have been intended as
responsive to the subpoena. But whether defendant Dr. Stover provided the records as a supplement
to his prior discovery responses, in response to the subpoena, or for some other reason makes no
difference in this analysis.
3 Defendants noted other information in the records as well, but in their argument regarding records
“pertaining to the alleged negligence,” the TB skin test form was the primary document they stressed.
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Opinion of the Court
Carolina Department of Correction Immunization Record/T.B. Skin Test” form, (“TB
skin test form”) included entries from 13 July 2011, 29 July 2012, and 2 July 2013.
TB skin test records from July 2011, July 2012, and July 2013 were included on this
sheet, along with prior years back to 2006. For each year from 2010 until 2013, the
sheet also recorded whether Plaintiff was having symptoms of unexplained
productive cough, unexplained weight loss, unexplained appetite loss, unexplained
fever, night sweats, shortness of breath, chest pain, and increased fatigue. For 2010,
this screening noted “yes” for night sweats, chest pain, and increased fatigue. For
2011, each symptom is marked “no.” For 29 July 2012, every symptom is marked
“no.” For 2013, again, every symptom is marked “no.”4 This record of TB skin tests
and symptoms was in Plaintiff’s DAC medical file as of 1 January 2012 and should
have been provided in response to Plaintiff’s initial request for records to DAC prior
to filing of the complaint, based upon the starting date of Plaintiff’s request for
records from January 2012 forward, since the July 2012 and July 2013 tests occurred
after January 2012 and prior to 27 November 2013, the date of Plaintiff’s request.
This record was not included in the previous productions of documents to Plaintiff,
either upon his request prior to filing the lawsuit, in the Industrial Commission
4 Other medical records from DAC clearly document that Plaintiff was suffering from unexplained
weight loss, night sweats, and worsening pain starting in October of 2012. His eighth visit to Dr. Bell
for these worsening symptoms was on 9 July 2013—only 3 days prior to the entries for the 2013 TB
skin test. But the TB skin test form states that he had no symptoms and the entry for “Refer to
Physician/Health Department” is also marked “no.” Dr. McConville noted this conflict in DAC’s
records of plaintiff’s care in his deposition as discussed in more detail below.
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Opinion of the Court
matter, or from Defendants in response to his request for production of documents.
Although the TB skin test form was responsive to all of Plaintiff’s prior requests, both
prior to and after filing his complaint, neither DAC nor the Defendants in this case
produced it until nearly four and a half years after the first request.
Neither DAC nor either Defendant ever offered any explanation or excuse for
why it was not produced earlier, nor do Defendants argue that the document was not
responsive to each of Plaintiff’s requests. In addition, this is not a case where the
relevant records, for purposes of Defendants’ motions to dismiss under Rule 9(j), were
in the possession of another medical provider. The relevant records in this case are
the medical records of Defendants’ employer, DAC; in other words, they are effectively
the medical records of Defendants’ own care of Plaintiff.
On 25 July 2018, less than a month after producing the additional 818 pages
of DAC records to Plaintiff, Defendants took Dr. McConville’s deposition. He could
not produce or definitively identify all the records he had reviewed before the
complaint was filed because his personal copy of Plaintiff’s records had been
destroyed by a fire in his office. However, he did identify the records based upon the
prior responses to discovery. He also discussed his review of the records just produced
by Defendant Dr. Stover. Defendant’s counsel asked Dr. McConville if the TB skin
test form changed “any of [his] opinions in this matter.” Dr. McConville testified
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Opinion of the Court
neither the TB skin test form nor the other additional records had changed his
opinions regarding Plaintiff’s medical care.
On 17 December 2018, Dr. Bell filed a motion to dismiss Plaintiff’s complaint
based upon Civil Procedure Rules 7, 9(j), and 12(b)(6) and alleged that “Plaintiff’s
reviewing expert, Dr. Parker McConville did not review all medical records pertaining
to the alleged negligence that were available to Plaintiff after reasonable inquiry
prior to the filing of Plaintiff’s complaint.” Dr. Stover did not file a written motion
but made an oral motion to dismiss for the same reason at the hearing on Dr. Bell’s
motion. At the hearing, in January 2019, Dr. Bell introduced the records including
Plaintiff’s TB skin tests covering the years from 2006 to 2013. Plaintiff had a positive
test in 2009. As noted above, this record should have been included in Plaintiff’s
medical records as of January 2012, as it included test results from 2006 until 2013,
but it was not produced until June 2018 in Dr. Stover’s supplemental production of
documents of 818 pages which had not been provided to Plaintiff previously, in either
the Industrial Commission matter or in this case.
The trial court concluded Defendants’ motions to dismiss should be granted
based upon Plaintiff’s failure to comply with Rule 9(j):
(16) The totality of the evidence before the Court
indicates Dr. McConville failed to review all medical
records pertaining to Defendants’ alleged negligence that
were available to Plaintiff after reasonable inquiry prior to
Plaintiffs’ filing of his civil action.
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Opinion of the Court
(17) Based on the foregoing, the Court determines
Plaintiff has failed to comply with Rule 9(j) of the North
Carolina Rules of Civil Procedure and this action is
dismissed with prejudice.
Plaintiff timely appealed.
II. Standard of Review of Order Addressing Rule 9(j) Motion
Our Supreme Court has recently clarified the standard under which the trial
court should consider the issue of compliance with Rule 9(j) and this Court’s standard
of review of the trial court’s order. In Preston v. Movahed, the Supreme Court
reversed the dismissal of the plaintiff’s claim for medical malpractice for evaluation
and treatment of chest pain based upon the trial court’s finding that the plaintiff’s
expert cardiologist “could not reasonably be expected to qualify as an expert witness”
against the defendant nuclear cardiologist. ___ N.C. at ___, 840 S.E.2d at 180.
Although the issue here arises from the adequacy of the medical records provided to
Plaintiff for expert review prior to the filing of the complaint, the Supreme Court
noted that the “analytical framework set forth in Moore applies equally to other Rule
9(j) issues in which ‘a complaint facially valid under Rule 9(j)’ is challenged on the
basis that ‘the certification is not supported by the facts.’” Id. at ___, 840 S.E.2d at
183 (quoting Moore v. Proper, 366 N.C. 25, 31-32, 726 S.E.2d 812, 817 (2012)).
The Supreme Court noted that both the trial court and this Court must view
the evidence regarding the plaintiff’s compliance with Rule 9(j) “in the light most
favorable to plaintiff.” Id. at ___, 840 S.E.2d at 190. The trial court is not to resolve
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Opinion of the Court
credibility issues or disputes of fact at this stage in a medical malpractice proceeding
but is only to determine if the plaintiff acted reasonably in his efforts to comply with
Rule 9(j):
“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.” The
rule provides, in pertinent part:
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[.]
Thus, the rule prevents frivolous claims “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.”
Id. at ___, 840 S.E.2d at 190 (footnote omitted) (citations omitted) (quoting Vaughan
v. Mashburn, 371 N.C. 428, 434-35, 817 S.E.2d 370, 375 (2018)).
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As part of its analysis in Preston, the Supreme Court discussed Moore v.
Proper, which addressed the “manner in which a trial court should evaluate
compliance with Rule 9(j), as well as the standard of review for a reviewing court on
appeal.” Preston, ___ N.C. at ___, 840 S.E.2d at 182 (quoting Moore v. Proper, 366
N.C. at 26, 726 S.E.2d 814). In Moore, the Rule 9(j) analysis was done in the context
of the defendant’s motion for summary judgment instead of a motion to dismiss:
In addressing the Rule 9(j) inquiry, the Court
explained that “[b]ecause Rule 9(j) requires certification at
the time of filing that the necessary expert review has
occurred, compliance or noncompliance with the Rule is
determined at the time of filing.” The Court agreed with
previous Court of Appeals precedent holding that “a court
should look at ‘the facts and circumstances known or those
which should have been known to the pleader’ at the time
of filing,” “as any reasonable belief must necessarily be
based on the exercise of reasonable diligence under the
circumstances[.]” Additionally, the Court noted that “a
complaint facially valid under Rule 9(j) may be dismissed
if subsequent discovery establishes that the certification is
not supported by the facts, at least to the extent that the
exercise of reasonable diligence would have led the party to
the understanding that its expectation was unreasonable.”
The Court further explained:
Though the party is not necessarily required
to know all the information produced during
discovery at the time of filing, the trial court
will be able to glean much of what the party
knew or should have known from subsequent
discovery materials. But to the extent there
are reasonable disputes or ambiguities in the
forecasted evidence, the trial court should
draw all reasonable inferences in favor of the
nonmoving party at this preliminary stage of
determining whether the party reasonably
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Opinion of the Court
expected the expert witness to qualify under
Rule 702. When the trial court determines
that reliance on disputed or ambiguous
forecasted evidence was not reasonable, the
court must make written findings of fact to
allow a reviewing appellate court to
determine whether those findings are
supported by competent evidence, whether
the conclusions of law are supported by those
findings, and, in turn, whether those
conclusions support the trial court’s ultimate
determination. We note that because the trial
court is not generally permitted to make
factual findings at the summary judgment
stage, a finding that reliance on a fact or
inference is not reasonable will occur only in
the rare case in which no reasonable person
would so rely.
Applying this standard, the Moore Court—
construing all disputes or ambiguities in the factual record
in favor of the plaintiff—determined that plaintiff’s
complaint complied with Rule 9(j) in that plaintiff
reasonably expected her proffered expert to qualify under
Rule 702. The Court expressed no opinion on whether the
plaintiff’s expert would actually qualify under Rule 702
and “note[d] that, having satisfied the Rule 9(j) pleading
requirements, plaintiff has survived the pleadings stage of
her lawsuit and may, at the trial court’s discretion, be
permitted to amend the pleadings and proffer another
expert” in the event that her proffered expert later failed to
qualify under Rule 702.
Preston, ___ N.C. at ___, 840 S.E.2d at 183 (first and third alterations in original)
(citations omitted).
In Preston, the Supreme Court noted that the analytical framework for a Rule
9(j) issue is the same, whether the motion to dismiss is in the form of a motion for
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Opinion of the Court
summary judgment or a motion to dismiss under Rule 12(b)(6). Id. at ___, 840 S.E.2d
at 183. The trial court must consider the facts and circumstances known to the
plaintiff, or which should have been known, at the time of the filing, and if there are
any disputes or ambiguities in the evidence, the trial court “should draw all
reasonable inferences” in favor of the plaintiff at this preliminary stage of the case:
While the Rule 9(j) issue in Moore arose in the
context of a motion for summary judgment and focused
specifically on whether the plaintiff’s expert was
reasonably expected to qualify as an expert witness, we
conclude that the analytical framework set forth in Moore
applies equally to other Rule 9(j) issues in which “a
complaint facially valid under Rule 9(j)” is challenged on
the basis that “the certification is not supported by the
facts.” For instance, where, as here, a defendant files a
motion to dismiss under Rule 12(b)(6) challenging a
plaintiff’s facially valid certification that the reviewing
expert was willing to testify at the time of the filing of the
complaint, the trial court must examine “‘the facts and
circumstances known or those which should have been
known to the pleader’ at the time of filing,” and “to the
extent there are reasonable disputes or ambiguities in the
forecasted evidence, the trial court should draw all
reasonable inferences in favor of the nonmoving party at
this preliminary stage[.]” “When the trial court determines
that reliance on disputed or ambiguous forecasted evidence
was not reasonable, the court must make written findings
of fact to allow a reviewing appellate court to determine
whether those findings are supported by competent
evidence.”
We stress that Rule 9(j) is unique and that because
the evidence must be taken in the light most favorable to
the plaintiff, the nature of these “findings,” and the
“competent evidence” that will suffice to support such
findings, differs from situations where the trial court sits
as a fact-finder. We do not view the legislature’s enactment
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Opinion of the Court
of Rule 9(j) as intending for the trial court to engage in
credibility determinations and weigh competent evidence
at this preliminary stage of the proceedings.
Id. at ___, 840 S.E.2d at 183-84 (citations omitted).
Thus, under Preston and Moore, we review de novo the trial court’s order
regarding Plaintiff’s compliance with Rule 9(j). Id. In this de novo review, we do not
defer to the trial court’s findings of fact but review the Plaintiff’s forecast of evidence
in the light most favorable to Plaintiff. Id. at ___, 840 S.E.2d at 181-82 (“[W]e
conclude that both of the lower courts erred in failing to view the evidence regarding
[plaintiff’s expert’s] willingness to testify under Rule 9(j) in the light most favorable
to plaintiff and that the Court of Appeals, in its de novo review, erred by deferring
entirely to the findings of the trial court.”).
III. Rule 9(j) Compliance
There is no dispute in this case that Plaintiff’s complaint was facially
compliant with Rule 9(j) and that Dr. McConville reviewed the medical care and
medical records available to Plaintiff pertaining to the alleged negligence before
Plaintiff filed the complaint. This appeal does not present any question regarding
Dr. McConville’s qualifications as an expert witness under Rule 702. Here, the issue
is whether Dr. McConville reviewed “all medical records pertaining to the alleged
negligence that are available to the plaintiff after reasonable inquiry.” N.C. Gen.
Stat. § 1A-1, Rule 9(j). In conducting our analysis of this question, we must consider
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Opinion of the Court
“‘the facts and circumstances known or those which should have been known to the
pleader’ at the time of filing. We find this rule persuasive, as any reasonable belief
must necessarily be based on the exercise of reasonable diligence under the
circumstances.” Moore, 366 N.C. at 31, 726 S.E.2d at 817 (citation omitted) (quoting
Trapp v. Maccioli, 129 N.C. App. 237, 241, 497 S.E.2d 708, 711 (1998)).
The trial court’s order includes the following findings of fact:
(5) Plaintiff had a positive PPD test in July 2009 that
indicated the potential presence of tuberculosis in his
system. At the time Plaintiff’s complaint was filed, it was
apparent that his prior tuberculosis exposure and related
treatment were relevant to his medical malpractice claim.
(Compl. ¶¶ 93,94,114). Yet, Plaintiff’s medical records
relevant to his tuberculosis history and related treatment
were not requested from the Department of Correction.
Rather, the request was limited to Plaintiff’s medical
records from, “January 1, 2012- Present.”
(6) Plaintiff designated Dr. Parker McConville (“Dr.
McConville”) as his Rule 9(j)expert.
(7) Plaintiff’s Rule 9(j) expert, Dr. Parker
McConville, was deposed on July 25, 2018.
(8) Dr. McConville testified as his deposition that
Plaintiff’s medical records related to Plaintiff’s positive
tuberculosis test and subsequent treatment and
monitoring were relevant to the alleged negligence of Dr.
Bell in that Dr. Bell should have reviewed these records
and been aware of their contents in developing his
differential, diagnosis related to Plaintiff’s symptoms.
(9) The Court finds that based on Dr. McConville’s
own testimony, the medical records related to Plaintiff’s
positive tuberculosis test and subsequent treatment and
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Opinion of the Court
monitoring are pertinent to the alleged negligence of Dr.
Bell.
(10) Dr. McConville further testified at his
deposition, however, that he had not received or reviewed
the medical records related to Plaintiff’s positive
tuberculosis test and subsequent treatment and
monitoring and was not aware of the content of those
records despite being aware of Plaintiff’s prior tuberculosis
exposure during his Rule 9(j) review in this matter and
prior to the filing of Plaintiff’s Complaint.
(11) Based on the documentary exhibits submitted
by counsel at the hearing on the Motion, including the
Authorization for Release of Information submitted to the
North Carolina Department of Correction and signed by
Plaintiff on October 12, 2013, it does not appear the
medical records related to Plaintiff’s positive tuberculosis
test and subsequent treatment and monitoring were
requested from the Department of Correction and the
Court therefore finds there was no “reasonable inquiry”
into the availability of these records as required by Rule
9(j).
Even if this Court were bound by the trial court’s findings of fact if supported
by competent evidence—and it is not, according to Preston—Finding 5 is not accurate.
Plaintiff’s TB skin test form should have been included in the records Plaintiff
received prior to filing his complaint. Although the form goes back to tests from 2006,
the form was part of his existing record as of 1 January 2012.
The trial court also made the following pertinent conclusions of law:
(12) A civil action alleging medical malpractice will
receive strict consideration for Rule 9(j) compliance and is
subject to dismissal without strict statutory compliance.
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Thigpen v, Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165
(2002) (internal citations omitted).
(13) A Rule 9(j) motion does not contain a procedural
mechanism by which a defendant may file a motion to
dismiss a plaintiff’s complaint. See, e.g., Barringer v.
Forsyth County Wake Forest University Medical Center,
197 N.C; App. 238, 255-256, 677 S.E.2d 465, 477 (2009).
“The Rules of Civil Procedure provide other methods by
which a defendant may file a motion alleging a violation of
Rule 9(j). E.G., N.C.G.S. § 1A-1, Rules 12, 41, and 56. Rule
9(j) does not itself, however, provide such a method.” Id.
In such a case, the Court’s analysis is not whether a
genuine issue of material fact exists, or whether the
evidence is viewed in the light most favorable to Plaintiff,
but a question of law. Id. See also Rowell v. Bowling, 191
N.C. App. 691, 695,678 S.E.2d 748, 751 (2009) (stating a
trial court’s review of a Rule 9(j) motion is a question of
law, and the Court is not to inquire into the evidence in the
light most favorable to plaintiff); Phillips v. A Triangle
Women’s Health Clinic, 155 N.C. App. 372, 316, 573 S.E.2d
600,603 (2002) (stating compliance with Rule 9(j) is a
question of law, not a question of fact).
(14) A complaint facially valid under Rule 9(j) may
be dismissed if subsequent discovery establishes that the
Rule 9(j) certification is not supported by the facts. See, e.g,
Moore v. Proper, 366 N.C. 25 at 32,726 S.E.2d at 7l7;
Ratledge v. Perdue, 239 N.C. App. 377, 381, 773 S.E.2d 315,
318 (2015); McGuire v. Riedle, 190 N.C. App. 785, 786, 661
S.E.2d 754,756 (2008); Winebarger v. Peterson, 182 N.C.
App. 510, 514, 642 S.E.2d 544, 547 (2007).
(15) Rule 9(f) contains no good-faith exception.
When the language of a statute is clear and without
ambiguity, it is the duty of the Court to give effect to the
plain meaning of the statute, and judicial construction of
legislative intent is not required. Oxedine v. TWL, Inc., 184
N.C. App. 162, 167, 645 S.E.2d 864, 867 (2007).
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(16) The totality of the evidence before the Court
indicates Dr. McConville failed to review all medical
records pertaining to Defendants’ alleged negligence that
were available to Plaintiff after reasonable inquiry prior to
Plaintiffs’ [sic] filing of his civil action.
(17) Based on the foregoing, the Court determines
Plaintiff has failed to comply with Rule 9(j) of the North
Carolina Rules of Civil Procedure and this action is
dismissed with prejudice.
Based upon the trial court’s order, it is apparent that the trial court did not
view the forecast of evidence “in the light most favorable to the Plaintiff” as required
by Moore and Preston. Instead, the trial court concluded that
“Rule 9(j) does not itself, however, provide such a
[procedural mechanism by which a defendant may file a
motion to dismiss a plaintiff’s complaint].” In such a case,
the Court’s analysis is not whether a genuine issue of
material fact exists or whether the evidence is viewed in
the light most favorable to Plaintiff, but a question of law.
....
(15) Rule 9(j) contains no good-faith exception. . . .
(16) The totality of the evidence before the Court
indicates Dr. McConville failed to review all medical
records pertaining to the alleged negligence that were
available to Plaintiff after reasonable inquiry prior to
Plaintiff’s filing of his civil action.
(Citations omitted).
The trial court’s order focused on the first portion of the phrase in Rule 9(j):
“all medical records pertaining to the alleged negligence.” N.C. Gen. Stat. § 1A-1,
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LEONARD V. BELL
Opinion of the Court
Rule 9(j)(1) (emphasis added). The trial court found that because Plaintiff did not
provide Dr. McConville with his records from DAC prior to January 2012, and
because the ultimate diagnosis was a spinal infection caused by tuberculosis and
Plaintiff had first had a positive TB test in 2009, Plaintiff had not provided “all
medical records pertaining to the alleged negligence.” This analysis overlooks the
actual allegation of negligence, which is not specifically a failure to diagnose and treat
tuberculosis; “Plaintiff asserts Dr. Bell’s failure to adequately evaluate and treat his
condition, and Dr. Stover’s refusal of requested treatment, amounts to medical
malpractice.” Leonard v. Bell, 254 N.C. App. at 696, 803 S.E.2d at 447. The allegation
is negligence in the evaluation of Plaintiff’s worsening back pain and other symptoms
over a period of months. But it is not this Court’s role in regard to ruling on a Rule
9(j) motion to determine the importance or weight of additional medical records or to
rule on how “pertinent” the records of Plaintiff’s diagnosis and treatment of
tuberculosis prior to 2012 may be to a determination of liability in this case. Based
upon the record in this case, that issue is a factual dispute to be addressed by medical
experts and resolved by a jury.
After Defendant Dr. Stover provided additional DAC records in 2018 regarding
Plaintiff’s care and Dr. McConville reviewed this information, Dr. McConville
testified in his deposition that the additional records did not change his opinion
regarding Defendants breach of the standard of care in Plaintiff’s medical treatment.
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Opinion of the Court
Defendant’s counsel asked Dr. McConville if the TB skin test form changed “any of
[his] opinions in this matter.” Dr. McConville testified it did not change his opinions.
He noted that he “would question [the TB skin test form’s] accuracy first of all”
because it conflicts with “what was documented in [Dr. Bell’s] notes from the nurses
and the P.A. and Dr. Bell, the answer to some of these questions [regarding
symptoms] would be yes. So I’m not sure why this doesn’t match up with his records.”
In response to further questions, he clarified that even if the TB skin test form was
“accurate,” his opinions had not changed. He explained that “the notes from the
physicians and the P.A. and the nurses” contradicted the notations on the TB skin
test form that Plaintiff had no symptoms. In addition, he noted even if Plaintiff had
not been having weight loss, fever, or night sweats, Dr. Bell had seen Plaintiff about
nine times over the
course of about seven or eight months complaining of back
pain, then radicular pain, other physical symptoms like
weakness in his legs. And--and I believe he complained of
numbness at some point. . . . [T]here’s still a process going
on that has not been adequately investigated and--
basically in my opinion. So the standard of care for that
would have been . . . further testing, whether it be via an
MRI or a CT scan with contrast or bloodwork, you know,
or--or a referral to a specialist.
He further explained that since Dr. Bell had prescribed
three different NSAIDs I believe--was it--ibuprofen,
Voltaren, and Naprosyn, all of which would have
suppressed a fever or temperature. . . . But if he did have a
temperature, that may have masked the-- the fever. So
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LEONARD V. BELL
Opinion of the Court
that’s another thing . . . to consider--you know, that I had
hoped Dr. Bell would have considered because he was
prescribing them.
As in Preston, there is a dispute regarding how to interpret certain medical
records and the basis for any change, or lack of change, in an expert’s opinion
regarding the standard of care and an appropriate course of evaluation and
treatment. But it is not the role of the trial court or this Court, at this early stage in
the case, to resolve any ambiguities or issues of fact against the Plaintiff. Instead,
the trial court, and this Court, must view the evidence in the light most favorable to
the plaintiff. Preston, ___ N.C. at ___, 840 S.E.2d at 181-82.
The primary issue under the facts of this case is not whether the additional
records produced by DAC in 2018 were “pertinent” to the alleged negligence. The
question is whether Plaintiff made “reasonable inquiry” to obtain all the medical
records pertaining to the alleged negligence. The trial court did not address this issue
except to note that “Rule 9(j) contains no good-faith exception,” which essentially
acknowledges Plaintiff’s “good faith” in requesting records but holds Plaintiff to the
impossible standard of ensuring that every medical provider’s response to a record
request is absolutely complete and accurate.
In addition, the trial court’s Finding of Fact 5 states that Plaintiff’s initial
request for records to DAC, did not include records regarding “his tuberculosis history
and related treatment.” But Plaintiff’s initial request asked for “[a]ll medical records,
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Opinion of the Court
declarations of medical emergencies, sick call filings, and grievances” from “January
1, 2012-Present.” (Emphasis added.) Plaintiff’s records related to tuberculosis,
including the TB skin test form, which was the focus of Defendants’ motions to
dismiss, would have been included in a complete response to a request for “all” of the
records for this time period. Plaintiff’s request was not limited to any particular type
of records or related to any particular diagnosis; he requested “all” of his medical
records from DAC, as is required by Rule 9(j).
Prior to filing the complaint, Plaintiff requested records from DAC and other
medical providers outside DAC who evaluated and treated Plaintiff. The record
demonstrates that Plaintiff made “reasonable inquiry” to obtain his medical records,
and the trial court did not find otherwise. Defendants have not identified a reason
plaintiff should have known that DAC had failed to provide the records he requested
in 2013. It is apparent from the records themselves the TB skin test form stressed
by Defendants before the trial court and this Court should have been included in
DAC’s response to Plaintiff’s first request for medical records, as it was part of
Plaintiff’s existing medical records with DAC on 1 January 2012 and at the time of
his request.
The trial court also found that Plaintiff’s diagnosis and treatment for TB were
pertinent to the alleged negligence. Even if the records are “pertinent,” the question
is whether plaintiff provided to Dr. McConville “all medical records pertaining to the
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Opinion of the Court
alleged negligence that are available to the plaintiff after reasonable inquiry.” N.C.
Gen. Stat. § 1A-1, Rule 9(j)(1) (emphasis added). Rule 9(j) does not ask the plaintiff
to make a selective request for the medical records he deems “pertinent” to his
medical condition. For example, instead of requesting all his medical records from 1
January 2012 forward, if Plaintiff had requested DAC to produce Plaintiff’s medical
records regarding his diagnosis and treatment for tuberculosis, Defendants would
have a valid objection to Plaintiff’s limiting the records to “certain records” the
plaintiff deemed relevant. This type of limited review of medical records has been
specifically disapproved by Fairfield v. WakeMed, 261 N.C. App. 569, 821 S.E.2d 277
(2018). Instead, Rule 9(j) requires the plaintiff to make “reasonable inquiry” for
production of “all medical records pertaining to the alleged negligence” and to have
the expert witness review all of the records “available to plaintiff after reasonable
inquiry.” N.C. Gen. Stat. § 1A-1, Rule 9(j)(1) (emphasis added). The “alleged
negligence” here was Defendants’ failure to evaluate and diagnose Plaintiff’s medical
issues over a period of months beginning at the end of 2012, not whether Plaintiff had
received proper care for his initial diagnosis of tuberculosis prior to 2012. And
although the TB skin test form was “pertinent to the alleged negligence,” it also
should have been provided in response to Plaintiff’s initial request for medical records
prior to filing his complaint. If DAC had provided this form in response to Plaintiff’s
request prior to filing the lawsuit, it is possible Plaintiff would have then requested
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Opinion of the Court
additional records going back to Plaintiff’s initial positive TB skin test, but DAC’s
response was incomplete, and the TB skin test form was not provided. Defendants
have not identified anything in the records produced that may have alerted Plaintiff
of a reason to request more information. Instead, the record demonstrates that
Plaintiff’s requests for all medical records from January 2012 was reasonable and
that Plaintiff provided all the records reasonably available to him to Dr. McConville.
The fact that DAC produced some records which include “pertinent” information
several years after Plaintiff’s record requests and Defendants’ responses to discovery
which did not reveal the records does not require dismissal of Plaintiff’s complaint.
Plaintiff’s symptoms and complaints of back pain started in October 2012; his
symptoms progressed to include chills, unexplained weight loss, and worsening pain
over the next several months. He saw Dr. Bell nearly every month for about 10
months. There is also no indication Dr. Bell asked Plaintiff about his TB status or
consulted Plaintiff’s DAC medical records which would have revealed this
information.5 At the beginning of Plaintiff’s course of treatment, the cause of his back
pain was not obvious to anyone. Both Defendants presumably would have reviewed
Plaintiff’s medical records maintained by the facility in which they were employed,
including Plaintiff’s TB skin test results from tests conducted at that same facility as
5 In August of 2013, Plaintiff informed physicians at New Hanover Regional Hospital that he had
previously been exposed to TB. However, his initial diagnosis of the infection in his back was
attributed to E. coli. TB was not identified as the cause until October of 2013, when Plaintiff was
treated at UNC Health Care.
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LEONARD V. BELL
Opinion of the Court
part of his evaluation of Plaintiff’s symptoms. If they failed to do so, that failure could
be pertinent as it may tend to support Plaintiff’s claim of breach of the standard of
care. But Plaintiff’s claim is not subject to dismissal based upon DAC’s failure to give
a complete response to Plaintiff’s initial request for his records, as he made
“reasonable inquiry” for “all medical records pertaining to the alleged negligence” as
required by Rule 9(j). N.C. Gen. Stat. § 1A-1, Rule 9(j)(1).
Rule 9(j) notably does not require a plaintiff to provide “all” medical records in
existence regarding the plaintiff’s medical condition, even years prior to a plaintiff’s
medical treatment and prior to the alleged negligence, to an expert for review prior
to filing suit. See N.C. Gen. Stat. § 1A-1, Rule 9(j). Many factors may be pertinent to
a medical diagnosis, even going back many years before the alleged negligent care
which is the subject of the claim. Such a standard would likely be nearly impossible
to meet; if even one medical provider inadvertently omitted a single page of records,
the plaintiff’s case would be subject to dismissal. Instead, Rule 9(j) sets a high but
reasonable standard. See id. It requires the plaintiff to make “reasonable inquiry”
for “all medical records pertaining to the alleged negligence” prior to filing suit and
to have a medical expert review all the records “available to the plaintiff” after
“reasonable inquiry.” Id. After filing the complaint, Plaintiff served discovery
requests for medical records on both Defendants in this case and subpoenaed records
from DAC. Both Defendants had effectively certified by their discovery responses
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LEONARD V. BELL
Opinion of the Court
that Plaintiff already had “all” of the medical records, to the best of their knowledge.6
Yet the recently-produced records upon which they based their motion to dismiss
were records from the very medical facility where they were employed—not records
from another medical provider they may not have been aware of or records
unavailable to them.
Defendants argue that this case is controlled by Fairfield v. WakeMed, 261
N.C. App. 569, 821 S.E.2d 277. But Fairfield is not applicable to this case. In
Fairfield, the plaintiff’s certification was not in accord with Rule 9(j), as the complaint
stated:
Counsel for the Plaintiffs hereby certify and affirm, that
prior to the filing [sic] this lawsuit, pursuant to Rule 9 (j)
of the North Carolina Rules of Civil Procedure, that certain
medical records and the medical care received by Mrs.
Fairfield has been reviewed by a physician 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 standard of care provided by
Defendants did not comply with the applicable standard of
care.
261 N.C. App. at 571, 821 S.E.2d at 279 (alteration in original) (emphasis added).
6 Defendants argue Dr. McConville’s inability to review the TB skin test form prior to the filing of the
complaint defeats Plaintiff’s malpractice claim because this information was crucial in Plaintiff’s
diagnosis. But Dr. McConville testified this information did not change his opinion. And viewing the
evidence in the light most favorable to Plaintiff, as Preston directs, according to their own discovery
responses, Defendants themselves apparently did not review his TB skin test results which were kept
in the DAC medical files or they did not consider this to be “pertinent” to Plaintiff’s evaluation. Their
argument would tend to support Plaintiff’s argument regarding negligence in failing to suspect a TB-
related infection, since they either (1) did not review the TB skin test form when treating Plaintiff or
(2) reviewed it but still did not suspect TB and misrepresented the records they relied upon in
discovery.
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LEONARD V. BELL
Opinion of the Court
This Court noted Rule 9(j) does not allow the plaintiff to have his expert review
only “certain” chosen records regarding the medical care; the expert must review all
records reasonably available to plaintiff:
Allowing a plaintiff’s expert witness to selectively
review a mere portion of the relevant medical records
would run afoul of the General Assembly’s clearly
expressed mandate that the records be reviewed in their
totality. Rule 9(j) simply does not permit a case-by-case
approach that is dependent on the discretion of the
plaintiff’s attorney or her proposed expert witness as to
which of the available records falling within the ambit of
the Rule are most relevant. Instead, Rule 9(j) requires a
certification that all “medical records pertaining to the
alleged negligence that are available to the plaintiff after
reasonable inquiry” have been reviewed before suit was
filed.
The certification here simply did not conform to this
requirement. Therefore, the trial court properly ruled that
Plaintiffs had failed to comply with Rule 9(j).
Id. at 574-75, 821 S.E.2d at 281 (citation omitted).
Plaintiff had requested all of his medical records from DAC and the particular
record Defendants focus on as “pertinent” to the alleged negligence should have been
included in a complete response to the request. The TB skin test form, finally
produced over four years after Plaintiff’s first request to DAC, was clearly responsive
to Plaintiff’s initial request for records. The problem arose not from Plaintiff’s request
for records but from DAC’s incomplete response.
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LEONARD V. BELL
Opinion of the Court
The record in question was held by DAC but based upon our record was not
included in any of the records produced by any other medical group or any of
Plaintiff’s treating physicians, including Defendants. Defendants do not argue that
Plaintiff’s initial request for records was unreasonable or insufficient, but they
contend it should have extended back further before his diagnosis. Plaintiff’s request
started with records from 1 January 2012, about nine months prior to Plaintiff’s
initial visit to Dr. Bell.7 Defendants have not demonstrated that the time period of
this request is unreasonable, particularly since the records in question, particularly
the TB skin test form, should have been produced in response to Plaintiff’s first
request. Although the sheet included tests from prior years, it also included tests for
2012 and 2013. The relevant fact in this case, for purposes of Plaintiff’s medical
malpractice claim, is whether TB should have been part of the differential diagnosis
by Dr. Bell much earlier in his treatment of Plaintiff. The TB skin test form—which
should have been produced in the records Plaintiff requested prior to filing suit—
shows Plaintiff first had a positive TB test in 2009. Defendants have not
demonstrated why Plaintiff’s initial request should have extended back some period
7 Since Defendants have not yet presented any expert medical opinions regarding the scope of records
which should have been considered “pertinent” to the alleged negligence, and Plaintiff’s expert testified
he would not change his opinion based upon the newly-produced records, Defendants ask this Court
to exercise a level of medical expertise it does not have—and could not exercise even if it did—
regarding the potential relevance of Plaintiff’s medical care several years before the alleged negligence.
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LEONARD V. BELL
Opinion of the Court
of time prior to 1 January 2012, since the record in question was responsive to
Plaintiff’s initial request.8
Nor have Defendants shown Plaintiff should have known, based upon any
characteristics of the records produced, that the records produced in response to his
initial request were not complete. The medical providers produced hundreds of pages
of records and there was no way for Plaintiff to tell if something had been omitted.
Plaintiff made “reasonable inquiry” for all of his “medical records pertaining to the
alleged negligence” prior to filing suit and then requested records again after filing
suit. N.C. Gen. Stat. § 1A-1, Rule 9(j). Plaintiff received hundreds of pages of medical
records from many providers, some duplicative. Even if we assume DAC and
Defendants were merely negligent in failing to find all of the records when Plaintiff
first requested them, and not that they intentionally withheld them to defeat
Plaintiff’s malpractice claim, Plaintiff made reasonable inquiry and his expert
witness reviewed all of the records he received.
IV. Conclusion
8 Plaintiff’s expert was aware of his positive TB skin tests based upon other information in Plaintiff’s
medical records and considered his medical history as part of his initial opinion developed prior to the
filing of the complaint. Records from Plaintiff’s treating physicians show they were also aware of his
positive TB history. Defendants have not demonstrated why the one-page TB skin test form or other
documents produced in 2018 would have made any meaningful difference in the expert review of the
medical care. After reviewing the additional records, Dr. McConville testified that they did not change
his opinion.
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LEONARD V. BELL
Opinion of the Court
Plaintiff made reasonable inquiry for all of his medical records pertaining to
the alleged negligence and he provided these records to his expert witness for review
prior to filing of the complaint as required by North Carolina General Statute § 1A-
1, Rule 9(j). We reverse the trial court’s order dismissing Plaintiff’s complaint based
upon Rule 9(j) and remand for further proceedings.
REVERSED AND REMANDED.
Chief Judge McGEE concurs.
Judge TYSON dissents by separate opinion.
-2-
No. COA19-742 – Leonard v. Bell
TYSON, Judge, dissenting.
Plaintiff’s undisclosed test for tuberculosis occurred more than three years
prior to any treatment of Plaintiff by Defendants in 2012 and 2013. Nothing shows
Defendants were privy to or aware of Plaintiff’s prior tuberculosis test. This prior
2009 test was part of Plaintiff’s medical history. Plaintiff failed to request and
provide these records for Dr. McConville to review.
Dr. McConville’s Rule 9(j) certification opines Defendants’ treatment of
Plaintiff failed to meet the statutory standard of care by their failing to consider
Plaintiff’s prior and undisclosed history of tuberculosis. Plaintiff’s remedy, if any, is
properly pursued before the Industrial Commission. The trial court’s dismissal is
properly affirmed. I respectfully dissent.
I. Rule 9(j)
Rule 9(j) is both a threshold and gatekeeper statute. It was enacted to prevent
frivolous malpractice claims “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.” Vaughan v. Mashburn, 371 N.C.
428, 435, 817 S.E.2d 370, 375 (2018) (emphasis supplied).
Rule 9(j) requires a plaintiff asserting medical malpractice to make “reasonable
inquiry” for production of “all medical records pertaining to the alleged negligence”
LEONARD V. BELL
TYSON, J., dissenting
and to have his expert witness to review all records “available to plaintiff after
reasonable inquiry.” N.C. Gen. Stat. § 1A-1, Rule 9(j)(1) (2019).
A. Proper Standard of Review
The trial court’s order accurately reflects the statute’s mandate that a medical
malpractice complaint is to be strictly reviewed for Rule 9(j) compliance and is
properly dismissed in the absence of Plaintiff’s and his expert’s strict statutory
compliance therewith. Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002).
[W]here, as here, a defendant files a motion to dismiss
under Rule 12(b)(6) challenging a plaintiff’s facially valid
certification that the reviewing expert was willing to testify
at the time of the filing of the complaint, the trial court
must examine the facts and circumstances known or those
which should have been known to the pleader’ at the time of
filing
Preston v. Movahed, 374 N.C. 177, 189 840 S.E.2d 174, 183 (2020) (emphasis
supplied).
The majority’s opinion asserts: “The relevant records in this case are the
medical records of Defendants’ employer, DAC; in other words, they are effectively
the medical records of Defendants’ own care of Plaintiff.” Contrary to the majority’s
notion, Plaintiff bears the burden to secure all his records needed to allow his asserted
expert witness to review and to certify Plaintiff’s threshold compliance with Rule 9(j)
with history and records “known or those which should have been known to the pleader
at the time of filing.” Id. (emphasis supplied). The majority’s opinion correctly notes
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LEONARD V. BELL
TYSON, J., dissenting
Dr. Bell’s response to Plaintiff’s request: “The only medical records related to Plaintiff
that are in Dr. Bell’s possession were produced by Plaintiff’s counsel in connection
with the pending Industrial Commission matter related to Plaintiff’s claims.”
Plaintiff’s complaint of Defendants’ alleged individual actions and liabilities
are asserted in superior court, and not as public officials of the DAC before the
Industrial Commission. DAC’s actions or omissions relative to Plaintiff’s undisclosed
medical records are irrelevant and cannot be imputed to Defendants in this action.
See Leonard v. Bell, 254 N.C. App. 694, 705, 803 S.E.2d 445, 453 (2017) (“Leonard I”).
As noted, our Supreme Court in Preston held: “The trial court must examine
the facts and circumstances, known or those which should have been known to the
pleader, at the time of filing . . . , and [if any] disputes or ambiguities in the forecasted
evidence, the trial court should draw all reasonable inferences in favor of the
plaintiff.” Preston, 374 N.C. at 189, 840 S.E.2d at 184 (emphasis supplied) (internal
quotation marks and citations omitted).
Here, no “disputes or ambiguities in the evidence” exist. Id. Plaintiff admits
knowledge of his prior positive tuberculosis test. He also admits not informing
neither his expert witness nor Defendants of his prior test in his medical history. The
majority’s opinion erroneously applies analysis from Preston to require and to “draw
all reasonable inferences in favor of the [plaintiff]” where the record shows no
“disputes or ambiguities in the evidence” exist. Id.
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LEONARD V. BELL
TYSON, J., dissenting
A medical malpractice complaint, even if initially facially valid under Rule 9(j),
shall be dismissed when subsequent events establish the Rule 9(j) certification is not
supported or is false. Moore v. Proper, 366 N.C. 25, 32, 726 S.E.2d 812, 817 (2012).
The appellate court’s review of undisputed facts is purely a question of law, not a
factual review in the light most favorable to Plaintiff. Id.; see Preston, 374 N.C. at
189, 840 S.E.2d at 184.
In Preston, our Supreme Court stated the “analytical framework set forth in
Moore applies equally to other Rule 9(j) issues in which ‘a complaint facially valid
under Rule 9(j)’ is challenged on the basis that ‘the certification is not supported by
the facts.’” Preston, 374 N.C. at 189, 840 S.E.2d at 183 (quoting Moore v. Proper, 366
N.C. at 31-32, 726 S.E.2d at 817).
In both Moore and in Preston, the Court was reviewing a summary judgment
order, while the dismissal order before us does not raise or resolve credibility issues
or show any ambiguities or disputes of fact. The sole issue before us is the trial court’s
dismissal based upon Plaintiff’s and his expert witness’ admitted failures to request
and review applicable records and to strictly comply with Rule 9(j) to file the
complaint. Vaughan, 371 N.C. at 434-35, 817 S.E.2d at 375. That order is properly
affirmed.
B. Plaintiff’s Failure to Request
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LEONARD V. BELL
TYSON, J., dissenting
On 27 November 2013, Plaintiff made his first request for medical records to
DAC. He specifically requested “[a]ll medical records, declarations of medical
emergencies, sick call filings, and grievances” from “January 1, 2012-Present.”
Plaintiff’s initial medical records request states a specific beginning date that is
approximately ten months prior to Plaintiff’s first visit to Defendant, Dr. Bell. The
record does not show Plaintiff made any medical record requests upon Dr. Bell or Dr.
Stover in their individual capacities.
Plaintiff received 512 pages of DAC medical records in response to his post
January 1, 2012 request. Dr. McConville was provided all these responsive DAC
records to review and provide his Rule 9(j) certification to challenge Defendants’
compliance with the standard of care before Plaintiff filed his initial and subsequent
complaints.
The trial court’s unchallenged Finding of Fact 5 states Plaintiff’s initial request
for records to DAC, did not include any records regarding “his tuberculosis history
and related treatment.” Plaintiff’s initial request specifically asked for “[a]ll medical
records, declarations of medical emergencies, sick call filings, and grievances” from
“January 1, 2012-Present,” which pre-dates by months any care rendered by
Defendants.
The trial court also found Plaintiff had failed to request or provide Dr.
McConville with his records from DAC prior to 1 January 2012. This finding of fact
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LEONARD V. BELL
TYSON, J., dissenting
is also unchallenged. Because the ultimate diagnosis was a spinal infection caused
by tuberculosis, and Plaintiff had a positive TB test in 2009, the trial court correctly
found Plaintiff had failed to provide Dr. McConville with “all medical records
pertaining to the alleged negligence” by Defendants and properly dismissed the
complaint.
Dr. McConville condemns Defendants for breach of their statutory standard of
care by not reviewing a 2009 PPD test, which Plaintiff did not disclose, request, or
provide, and which he did not review prior to rendering, and upon which he bases his
certification. It is the Plaintiff-patient’s duty to provide and fully disclose their prior
medical history to subsequent treating physicians and Rule 9(j) expert witness. See
Lowe v. Branson Auto., 240 N.C. App. 523, 534, 771 S.E.2d 911, 918 (2015)
(“[P]laintiff’s [rejected] claim for benefits hinged on . . . plaintiff’s failure to disclose
his prior back problems . . . and the doctors’ reliance on plaintiff’s incomplete medical
history.”).
Plaintiff makes no assertion or showing this 2009 PPD test was disclosed or
available to Defendants in their individual capacities during their treatment of
Plaintiff in late 2012 through mid-2013. If knowledge of this undisclosed medical
record is to be imputed to them by virtue of their employment by DAC, Plaintiff’s
claim lies solely before the Industrial Commission and not in the superior court.
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LEONARD V. BELL
TYSON, J., dissenting
Plaintiff does not allege Defendants either improperly failed to produce or improperly
withheld evidence.
Strict compliance with Rule 9(j)’s pleading requirement rests solely upon
Plaintiff and his expert witness. See id. Admitted, unchallenged, and undisputed
evidence in the record supports the trial court’s findings and conclusions to dismiss.
Thigpen, 355 N.C. at 202, 558 S.E.2d at 165. No burden shifting, review in light most
favorable, or the existence of genuine issues of material fact relieves Plaintiff of strict
compliance with the pleading requirement under Rule 9(j). Moore, 366 N.C. at 32, 726
S.E.2d at 817. The appellate court’s review of undisputed facts is purely a question
of law, not a factual review in the light most favorable to Plaintiff. Preston, 374 N.C.
at 189, 840 S.E.2d at 184.
II. Plaintiff’s Rule 9(j) Certification
A. Prior to Filing Claim
The trial court properly dismissed Plaintiff’s complaint for failure to comply
with Rule 9(j). Dr. McConville admitted he had failed to reference or review Plaintiff’s
PPD test from 1 July 2009 prior to making his certification.
N.C. Gen. Stat. § 1A-1, Rule 9(j) provides:
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
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LEONARD V. BELL
TYSON, J., dissenting
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.
N.C. Gen. Stat. § 1A-1, Rule 9(j) (2019) (emphasis supplied).
The plain language of Rule 9(j) mandatorily requires a plaintiff’s medical
malpractice action “shall be dismissed” unless a qualified medical expert reviews “all
medical records pertaining to the alleged negligence that are available to the plaintiff
after reasonable inquiry” prior to filing the complaint. N.C. Gen. Stat. § 1A-1, Rule
9(j) (1)-(2) (emphasis supplied).
“[C]ompliance with Rule 9(j) is determined at the time the complaint is filed.”
Mangan v. Hunter, __ N.C. App. __, __, 835 S.E.2d 878, 883 (2019). This Court held:
“Rule 9(j) unambiguously requires a trial court to dismiss a complaint if the
complaint’s allegations do not facially comply with the rule’s heightened pleading
requirements.” Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238,
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LEONARD V. BELL
TYSON, J., dissenting
255, 677 S.E.2d 465, 477 (2009). This Court further held “even when a complaint
facially complies with Rule 9(j) by including a statement pursuant to Rule 9(j), if
discovery subsequently establishes that the statement is not supported by the facts,
then dismissal is likewise appropriate.” Id.
Based upon Dr. McConville’s review, expert opinion, and certification,
Plaintiff’s complaint included the following false Rule 9(j) certification:
Plaintiff states that the medical health providers who
Plaintiff reasonably believes will qualify as expert
witnesses under Rule 702 of the North Carolina Rules of
Evidence reviewed all of the allegations of negligence
related to medical care that is described in this Complaint
and all the medical records pertaining to the alleged
negligence that are available to Plaintiff after a reasonable
inquiry.
(emphasis supplied).
B. Deposition Testimonies
The majority’s opinion asserts Dr. McConville’s belief that Defendants should
have included tuberculosis in their differential diagnosis earlier. By accepting this
premise and sidestepping Rule 9(j), the majority misapplies a level of medical
standard of care to determine a prior and undisclosed three-year-old tuberculosis test
may create individual liability for Defendants. This notion is contrary to the required
standard of care, our statutes, rules, procedures, precedents, and the facts of this
case.
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LEONARD V. BELL
TYSON, J., dissenting
Dr. McConville’s opines Dr. Bell was individually guilty of medical malpractice,
because Dr. Bell should have suspected a tuberculosis infection sooner and ordered
an MRI scan due to Plaintiff’s prior positive, but undisclosed, 2009 PPD test, more
than three years prior to Dr. Bell’s initial treatment. Dr. McConville testified
Plaintiff’s prior history of tuberculosis was “relevant” to forming and the development
of the “differential diagnosis.”
Equally, or even more important, is Dr. Bell’s and Dr. Stover’s lack of
knowledge of the prior test that Plaintiff had failed to disclose in his medical history.
Dr. McConville testified to Plaintiff’s positive 2009 PPD test:
Defendants’ Counsel: I want to break that apart just a little
bit, but did you review [Plaintiff]’s medical records related
to his positive PPD test in 2009?
Dr. McConville: No. I saw the note from the infectious
disease doctor when he was hospitalized that he had a past
history of tuberculosis so - - and that was in September - -
August, Sep- - August, September when he was
hospitalized and had his surgery- - initial surgery.
Dr. McConville: So PPD basically you get a - - you know, a
shot, you know, typically just subcutaneously in your
forearm, and then you come back two days later and see if
there’s any - - oh, what’s the right word—if it’s - - if it’s red
or indurated. And then that - - that diameter is- - is
measured. And there’s a cutoff that if it’s above a certain,
you know, diameter, then there is - - assume that, you
know, this person’s been exposed to tuberculosis.
Defendants’ counsel: Do you know the size of [Plaintiff]’s
[PPD] result was in 2009?
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LEONARD V. BELL
TYSON, J., dissenting
Dr. McConville: I don’t ‘cause I don’t believe I reviewed
those records.
Defendants’ counsel: Do you know what treatment he was
provided?
Dr. McConville: I do not, no.
During cross examination by Plaintiff’s counsel, Dr. McConville testified:
Plaintiff’s counsel: And would [night sweats] have been
something that would be important for Dr. Bell to put in
his request for an MRI that he made in June of 2013 for
[Dr.] Martin?
Dr. McConville: I think that in conjunction with his
previous diagnosis of tuberculosis, yes. It’s very pertinent.
....
Plaintiff’s counsel: Do you recall seeing any notes from Dr.
Bell that referenced that positive tuberculosis test?
Dr. McConville: Not that I recall, no.
Plaintiff’s counsel: Is that something that’s important?
Dr. McConville: Yes
Plaintiff’s Counsel: Let me ask that a little more clearly. Is
that something that would be important for Dr. Bell to
know?
Dr. McConville: Yes. I think that would definitely have
guided him in his decision-making process in regards to, A,
his differential and, B, what test that he might have
ordered for [Plaintiff], not only radiographic [X-ray] tests
but also bloodwork.
Plaintiff’s counsel: So in order to know about that prior
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LEONARD V. BELL
TYSON, J., dissenting
tuberculosis test, Dr. Bell would have had to review
[Plaintiff]’s previous medical records, correct?
Dr. McConville: I assume, yes.
(emphasis supplied).
During re-direct, Dr. McConville further testified:
Defendants’ counsel: Okay. What would Dr. Bell have
needed to know about for the purposes of his providing
medical care to [Plaintiff] and abiding by the standard of
care in this case - - what would Dr. Bell have needed to
know about the prior positive PPD test?
Dr. McConville: A, if he was treated. And B, it might have
been prudent to get, you know, chest CT to make sure that
he had no had - - developed active tuberculosis again, But
also like, you know, with this case, you know, the end
result- - you know, you assume with the complaints of night
sweats or cold chills or what have you, weight loss and low
back pain - - you know, you want to rule out, you know, an
infection in the spine from tuberculosis.
C. Motion to Dismiss
Plaintiff’ sought his medical records from DAC beginning from the time period
two and one-half years after his July 2009 PPD positive diagnosis for tuberculosis.
As a result, Dr. McConville failed to review the results of this test and any treatment
before rendering his Rule 9(j) certification. Nothing in the record shows Plaintiff ever
informed or provided either of the Defendants with this PPD test, any treatment
thereof, or with any disclosure of his prior tuberculosis to hold them individually
liable.
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LEONARD V. BELL
TYSON, J., dissenting
Dr. McConville testified to the importance of this test to Defendants’ alleged
breach of their standard of care by failing to diagnose Plaintiff’s tuberculosis infection
earlier. It is undisputed Dr. McConville did not review the results of the 2009 PPD
test and bases and certifies his opinion of Defendants’ alleged breach of the required
standard of care upon their failures to know the undisclosed. When questioned by
Defendants ‘counsel at deposition, Dr. McConville could not ascertain if the 2009 test
was the result of latent or active tuberculosis bacteria.
The majority’s opinion asserts “Defendants have not demonstrated why the
one-page skin test form or other documents produced in 2018 would have made any
meaningful difference in the expert review of the medical care.” This assertion is
erroneous in two different ways. First, it places a burden upon Defendants that is
contrary to Preston, all precedents, and our statutes. Plaintiff, not Defendants,
maintains the burden of compliance with Rule 9(j) prior to filing the complaint.
Preston, 374 N.C. at 189, 840 S.E.2d at 183. Second, given the nature of tuberculosis
and the specific culture found after Plaintiff’s surgery, Defendants’ purported
knowledge of Plaintiff’s undisclosed 2009 positive history of tuberculosis is critical to
support Dr. McConville’s Rule 9(j) certification.
Dr. McConville’s testified Plaintiff’s prior diagnosis of tuberculosis and any
treatment thereafter is pertinent to the standard of care and allegations of negligence
against Dr. Bell and Dr. Stover. Dr. McConville opined Plaintiff’s history of
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LEONARD V. BELL
TYSON, J., dissenting
tuberculosis, in conjunction with his other symptoms, should have made Dr. Bell
suspicious of a potential tuberculosis infectious process in diagnosing and treating
Plaintiff.
Plaintiff’s original complaint filed in Columbus County, which contained Dr.
McConville’s Rule 9(j) certification, alleged the source of Plaintiff’s infection was from
tuberculosis. Plaintiff’s later complaint, filed in Cumberland County, with a similar
certification, only mentions UNC Hospital’s tuberculosis cultures post-surgery, and
not the 2009 PPD test. Plaintiff’s appellate brief alleges tuberculosis as the source of
his infection.
This Court in Mangan recently examined a similar issue of the statute’s
mandate requiring the expert’s review of “all medical records” to comply with Rule
9(j). Mangan, __ N.C. App. at __, 835 S.E.2d at 883. In Mangan, and unlike here,
the parties disputed whether the Rule 9(j) expert had reviewed all medical evidence.
Id. Here, Plaintiff concedes in depositions, before the trial court, in briefs, and at oral
argument that Dr. McConville did not review Plaintiff’s 2009 PPD test or treatment
to indicate tuberculosis.
These facts before us mirror those in Fairfield v. WakeMed, where a Rule 9(j)
medical expert certified he had reviewed “certain” plaintiff’s medical records.
Fairfield v. WakeMed, 261 N.C. App. 569, 574, 821 S.E.2d 277, 280 (2018). This Court
affirmed the trial court’s dismissal.
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LEONARD V. BELL
TYSON, J., dissenting
“North Carolina courts have strictly enforced the provisions of Rule 9(j).” Id. at
574, 821 S.E.2d at 281. More illustratively, this Court held:
Based on the unambiguous language of the Rule, all of the
relevant medical records reasonably available to a plaintiff
in a medical malpractice action must be reviewed by the
plaintiff’s anticipated expert witness prior to the filing of
the lawsuit, and a certification of compliance with this
requirement must be explicitly set out in the complaint.
Id.
To not strictly follow this rule and allow an expert to “selectively review a mere
portion of the relevant medical records would run afoul of the General Assembly’s
clearly expressed mandate that the records be reviewed in their totality.” Id.
Dismissing Plaintiffs argument to the contrary, this Court continued:
Rule 9(j) simply does not permit a case-by-case approach
that is dependent on the discretion of the plaintiff’s
attorney or her proposed expert witness as to which of the
available records falling within the ambit of the Rule are
most relevant. Instead, Rule 9(j) requires a certification
that “all medical records pertaining to the alleged
negligence that are available to the plaintiff after
reasonable inquiry” have been reviewed before suit was
filed.
Id. at 574-75, 81 S.E.2d at 281.
Rule 9(j) compels the Plaintiff to provide to their expert and requires the expert
to review “all medical records pertaining to the alleged negligence that are available
to the plaintiff after reasonable inquiry” before the filing of the complaint. N.C. Gen.
Stat. § 1A-1, Rule 9(j) (emphasis supplied).
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LEONARD V. BELL
TYSON, J., dissenting
Dr. McConville expressly admitted he had failed to review the results of
Plaintiff’s 2009 PPD test showing his tuberculosis infection before making the
certification in the complaint, which is the basis of his alleged breach of the standard
of care against Dr. Bell and Dr. Stover. During discovery, Defendants learned Dr.
McConville had not reviewed all of Plaintiff’s relevant medical records, prior to 1
January 2012, the same type of breach of the standard of care for which he opines
Defendants are liable.
This Court’s holdings in Fairfield and Barringer controls the analysis and
proper outcome of Dr. McConville’s failure to review. Fairfield, 261 N.C. App. at 574,
821 S.E.2d at 280; Barringer, 197 N.C. App. at 255, 677 S.E.2d at 477. “[E]ven when
a complaint facially complies with Rule 9(j) by including a statement pursuant to
Rule 9(j), if discovery subsequently establishes that the statement is not supported
by the facts, then dismissal is likewise appropriate.” Barringer, 197 N.C. App. at 265,
677 S.E.2d at 477. The trial court’s order of dismissal complies precisely with both
precedents.
D. Reasonableness of Plaintiff’s Record Inquiry
The majority’s opinion asserts Plaintiff’s made a reasonable inquiry for records
after “January 1, 2012.” Rule 9(j) requires records “available to the plaintiff after
reasonable inquiry” before the filing of the complaint. N.C. Gen. Stat. § 1A-1, Rule
9(j). Plaintiff’s brief and arguments do not show his specific and dated request for
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LEONARD V. BELL
TYSON, J., dissenting
records for his Rule 9(j) expert witness to review and certify Defendant’s alleged
negligence was reasonable to excuse and give credence to Dr. McConville’s
certification
Considering Plaintiff’s own knowledge of his recent 2009 PPD test and
tuberculosis diagnosis, Plaintiff could have requested medical records for an
expanded term from the DAC, at least for the period of his incarceration. At the time
Plaintiff sought treatment for his back pain, he was or should have been aware of his
recent past tuberculosis infection. Plaintiff’s counsel failed to request all the records
available “after reasonable inquiry” relating to the infection prior to obtaining Rule
9(j) certification and filing his complaint. No allegation or evidence tends to show
Plaintiff disclosed or informed Dr. Bell or Dr. Stover of his past PPD test or provided
any medical history of tuberculosis infection. It was Plaintiff’s duty to disclose.
Dr. McConville opined Defendants breached their standard of care and
committed medical malpractice by treating a patient with a history of tuberculosis
and without more immediately ordering an MRI study to rule out that infection. Dr.
McConville further testified Defendants individually breached their standard of care
and committed medical malpractice by not seeking out Plaintiff’s medical records
when Plaintiff presented his symptoms: numbness in his legs, blood in his stool, night
sweats, unexplained weight loss, fatigue, and severe pain.
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LEONARD V. BELL
TYSON, J., dissenting
Dr. McConville testified he did not review nor seek out these same records, but
yet he condemns Defendants of breach of the required standard of care and medical
malpractice for their alleged same failures. Dr. McConville’s basis of Plaintiff’s prior
history of tuberculosis was disclosed in chart notes from a UNC Hospital infectious
disease physician after Plaintiff’s surgery and treatment. No information was
disclosed to Defendants while they were treating Plaintiff. Dr. McConville’s opinion
from this record was vital to his assertion and certification of Defendants’ alleged
breach of the standard of care to support the Rule 9(j) certification in Plaintiff’s
complaint.
Plaintiff stipulated at oral argument that Defendants and their employers did
not withhold any evidence of the PPD test to later ambush Plaintiff or Dr. McConville
during the deposition, or that Plaintiff’s incarceration limited his knowledge or access
to his records or the treatments he received. Plaintiff does not assert the 2009 PPD
tuberculosis test was disclosed or known to nor held by Defendants individually.
Additionally, the specific dates in Plaintiff’s medical record’s request failed to
encompass the time frame of his 2009 PPD test of tuberculosis infection. This PPD
test was relatively recent to Plaintiff’s 2012 complaints of back pain and was not so
remote in time to Defendants’ treatment to excuse Plaintiff’s disclosure thereof or
being provided for review. This recentness in time is unlike a diagnosis of a chronic
disease at childhood or tests and treatments from many years earlier.
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LEONARD V. BELL
TYSON, J., dissenting
Plaintiff’ admittedly failed to comply with the statute or to inform Defendants
or Dr. McConville of his past medical history and records at the time of their
treatment of Plaintiff and the Rule 9(j) review. His argument is properly overruled,
and the trial court’s order affirmed.
III. Conclusion
Rule 9(j) affirmatively and mandatorily requires the qualified medical expert
to review “all medical records pertaining to the alleged negligence that are available
to the plaintiff after reasonable inquiry” and certify breach of the statutory standard
of care prior to the filing of the complaint. N.C. Gen. Stat. § 1A-1, Rule 9(j).
The majority’s opinion (1) fails to properly apply the statute; (2) misconstrues
our precedents to recast undisputed and conceded facts as ambiguities; (3) shifts from
Plaintiff and places an improper burden on Defendants; and, (4) misinterprets
Plaintiff’s expert’s own testimony and failures to erroneously reverse the trial court’s
order.
The trial court’s order reflects the correct ruling under the law and precedents
and is properly affirmed. I respectfully dissent.
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Leonard v. BellÂ
Combined Opinion