Brown v. Kindred Nursing Centers East, L.L.C.

*666ELMORE, Judge,

dissenting.

For the reasons stated below, I respectfully dissent from the majority opinion and would vote to affirm the order of the trial court. I would hold that.the trial court properly dismissed plaintiffs claim for failure to comply with the plain language of Rule 9(j).

On 24 May 2006, plaintiff filed a request to amend his complaint. He explained:

As my Motion for 9J Extension indicates, I did consult with two different physicians in the same area of specialization as Dr. Fergusion [sic] prior to the initial filing of this case which was March 29, 2006. Each physician came to the independent conclusion that there was significant evidence of gross medical malpractice on the part of Dr. Ferguson. However, neither one want [sic] to say so on the record. The complaint needs to be amended to express this fact.
* * *
I did consult with a registered nurse prior to the initial filing of this case which was March 29, 2006, [sic] the nurse came to the conclusion that standard nursing procedures and practices were not followed by the nursing staff at Guardian Care as regards patient Clamon Brown. The complaint needs to be revised to reflect this.

Plaintiff also filed a response to defendants’ motions to dismiss on 31 May 2006, again explaining that he had consulted with two physicians who could have reasonably expected to qualify as expert witnesses, but that neither physician wished to share his opinion “on the record.”

On 2 June 2006, the trial court granted “[p]laintiff’s motion for a 120 day extension for filing a 9 J Statement” and made the motion retroactive to 29 March 2006. On 11 July 2006, plaintiff — now represented by counsel — again moved to file an amended complaint to include the Rule 9(j) pleading requirements. The first amended complaint, also filed 11 July 2006, included the following language:

The medical care at issue in this case 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.

*667On 10 March 2008, following a hearing, the trial court allowed defendants’ motion to dismiss pursuant to Rules 9(j), 12(b)(6), and 41 and dismissed plaintiff’s complaint with prejudice. Plaintiff now argues that, as a matter of course, he was entitled to an extension to file his 9(j) certification after he had already filed his medical malpractice complaint.

Rule 9(j) mandates that a medical malpractice claim be dismissed if it does not contain the required expert certification. Thigpen v. Ngo, 355 N.C. 198, 203, 558 S.E.2d 162, 166 (2002). Furthermore, “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 204, 558 S.E.2d at 166.

In Thigpen, the Supreme Court “granted discretionary review to determine if 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 166-67. The Court concluded that such an allegation does not satisfy Rule 9(j):

To 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), (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 “plaintiff’s medical care has 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. . . . Allowing a plaintiff to file a medical malpractice complaint and to then wait until after the filing to have the allegations reviewed by an Id. expert would pervert the purpose of Rule 9(j).

Id. In my opinion, this language leaves no doubt that the questioned medical care must be reviewed before the plaintiff files his original complaint. Not only must this review occur before the plaintiff files his original complaint, but the review must be conducted by a person *668who is reasonably expected to qualify as an expert witness and who is willing to testify as to that opinion.

Here, plaintiffs amended complaint uses language nearly identical to the language rejected in Thigpen. As in Thigpen, plaintiff did not specify that the review occurred before he filed his original complaint or present evidence to support such a statement. In fact, plaintiff’s March 2006 filings all state that the medical care had been reviewed only by potential experts who were not willing to testify. The plaintiff in Thigpen merely suffered from an absence of evidence showing that the medical care had been properly reviewed before the original complaint was filed. Here, plaintiff himself filed affirmative statements that he had not obtained proper review of his father’s medical care before filing his original complaint. Accordingly, I would hold that plaintiff did not meet the requirements for 9(j) certification and that the trial court properly dismissed his complaint.