Bass v. Durham County Hospital Corp.

TYSON, Judge,

dissenting.

I respectfully dissent from the majority’s opinion reversing Judge Cashwell’s order. The majority’s opinion relies heavily upon Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 528 S.E.2d 568 (2000) to support its result. The Rule 9(j) 120-day extension that plaintiff at bar obtained and her failure to file a conforming complaint within that time factually and legally distinguishes this case from Brisson. The more recent Supreme Court opinion in Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002), controls the outcome at bar. Judge Cashwell’s dismissal with prejudice of plaintiff’s complaint should be affirmed.

I. Rule 41(a)

The reliance of the majority’s opinion upon and its application of the interpretation of Rule 41(a) in Brisson to the facts at bar is misplaced. Brisson holds that “[t]he effect of a judgment of voluntary dismissal is to leave the plaintiff exactly where he or she was before the action was commenced.” Brisson, 351 N.C. at 593, 528 S.E.2d at 570.

The plain language of Rule 41(a) states that “[i]f an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice,” the claimant has one year from the time of the dismissal to bring a new action on that same claim. N.C. Gen. Stat. § 1A-1, Rule 41(a) (2001) (emphasis supplied). Plaintiff’s original complaint was not “commenced within the time prescribed therefor” because plaintiff failed to comply with Rule 9(j) until after the original statute of limitations and the 120-day extension had expired. See Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002).

II. Effect, of Thigpen v. Nao

Our Supreme Court in Thigpen v. Ngo reviewed the applicability of Rule 9(j) to amendment of complaints. “[W]e hold that once a *224party receives and exhausts the 120-day extension of time in order to comply with Rule 9(j)’s expert certification requirement, the party cannot amend a medical malpractice complaint to include expert certification.” Id. at 205, 558 S.E.2d at 167 (emphasis supplied). The majority’s opinion would allow plaintiffs amended complaint with the 9(j) certification, filed after the original statute of limitations period and the 120-day extension expired, to relate back and cure the defect. This result is precisely what our Supreme Court held plaintiff could not do. Id.

Relation back is unavailable where a plaintiff obtained an extension under Rule 9(j) to file the original complaint and failed to comply. Id. Under this rule, plaintiffs complaint was not “commenced within the time prescribed therefor.” N.C. Gen. Stat. § 1A-1, Rule 41(a)(1) (2001). Plaintiff waited nearly the entire original limitations period and until the last day of the Rule 9(j) 120-day extension before filing a complaint that: (1) was facially defective, (2) did not contain the mandatory certification, and (3) could not be properly amended under Rule 15. Thigpen, 355 N.C. at 205, 558 S.E.2d at 167.

III. Reconciling Brisson and Thiaven

The majority’s opinion reads Brisson to allow plaintiff to voluntarily dismiss without prejudice and refile. See Brisson, 351 N.C. at 600, 528 S.E.2d at 574 (Wainwright J., dissenting) (stating “[t]he majority’s analysis would effectively extend the medical malpractice statute of limitations from three years ... to four years and 120 days.”); See also, John Huske Anderson, Jr., Brisson v. Santoriello and Rule 9(j): A Step Backward in the Pursuit to Prevent Frivolous Medical Malpractice Actions in North Carolina, 79 N.C. L. Rev. 855, 867-70 (2001) (discussing the practical effects of Brisson including (1) curtailment of Rule 9(j) as a prerequisite to filing a medical malpractice action, (2) extension of the statute of limitations, and (3) reduction of the judicial control of trial judges).

The facts of Brisson are distinguishable when compared to the case at bar. Unlike plaintiff here, “the plaintiffs in Brisson did not request the 120-day extension provided by Rule 9(j).” Thigpen, 355 N.C. at 201, 558 S.E.2d at 164 (citing Brisson, 351 N.C. 589, 528 S.E.2d 568). The proposed amended complaint with 9(j) certification in Brisson was filed within 120 days after the statute of limitations expired, and would have been timely filed if plaintiffs had requested and received the 120-day extension. Brisson, 351 N.C. at 591-92, 528 S.E.2d at 569-70.

*225The 120-day extension of the statute of limitations available to medical malpractice plaintiffs by Rule 9(j) is for the purpose of complying with Rule 9(j). N.C. Gen. Stat. § 1A-1, Rule 9(j) (2001). “The title of Rule 9, ‘Pleading special matters,’ plainly signals the statute’s tailoring to address distinct situations set out in the statute.” Thigpen, 355 N.C. at 203, 558 S.E.2d at 165. Since relation back is not available through Rule 15(c) of the North Carolina Rules of Civil Procedure to comply with Rule 9(j), plaintiff’s amended complaint did not toll the statute of limitations. Id. at 205, 558 S.E.2d at 167. Plaintiff was not entitled to the one-year extension under Rule 41(a) because her original action was not timely filed.

Rule 9(j) mandates that any complaint which fails to comply with the certification requirement, “ ‘shall be dismissed. ’ ” Id. at 201, 558 S.E.2d at 164-65 (quoting N.C. Gen. Stat. § 1A-1, Rule 9(j)). Thigpen reasons that although the plaintiffs in Brisson voluntarily dismissed their case without prejudice, a trial judge can dismiss with prejudice where a complaint does not contain the certification required by Rule 9(j) and the statute of limitations has expired. Id. “In Brisson, we stated ‘Had the trial court involuntarily dismissed plaintiffs’ motion before plaintiffs had taken the voluntary dismissal, the plaintiffs’ claims set forth in the second complaint would be barred by the statute of limitations.’ ” Id. (quoting Brisson, 351 N.C. at 595, 528 S.E.2d at 572) (emphasis in original).

I would hold that, although plaintiff voluntarily dismissed her initial complaint without prejudice, Judge Cashwell correctly dismissed plaintiff’s second complaint. A Rule 41(a) voluntary dismissal would salvage the action and provide another year for re-filing had plaintiff filed a complaint complying with Rule 9(j) before the limitations period expired. Plaintiff’s complaint was untimely filed beyond the expiration of the applicable statute of limitations and the Rule 9(j) extension. I would affirm Judge Cashwell’s order dismissing plaintiff’s action. I respectfully dissent.