Moore v. Proper

STEPHENS, Judge,

dissenting.

I respectfully dissent from the majority opinion to address the majority’s misinterpretation and misapplication of North Carolina Civil Procedure Rule 9(j).

Rule 9Q), which sets out the heightened pleading requirements for a medical malpractice complaint, provides that “[a]ny complaint alleging medical malpractice by a health care provider” “shall be dismissed," unless the complaint satisfies one of the three following conditions:

(1) The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;
*213(2) The pleading specifically asserts that the medical care has 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; or
(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.

N.C. Gen. Stat. § 1A-1, Rule 9(j) (2009) (emphasis added).

In this case, it is clear from Moore’s complaint that she sought to satisfy Rule 9(j) by fulfilling the Rule 9(j)(l) condition only. (1) Moore’s complaint “specifically asserts” that the medical care was reviewed by Dr. Dunn, “who is reasonably expected to qualify as an expert witness under Rule 702” and “who is willing to testify that the medical care provided by [] Defendants did not comply with the applicable standard of care”; (2) Moore’s complaint contains no “specific assertion” that matches the language of Rule 9(j)(2); and (3) as noted by the majority, res ipsa loquitur “was not raised by the parties below and is not argued on appeal.” Nevertheless, the majority concludes that “the [c]omplaint reveals [Moore] pled a paragraph minimally sufficient to meet the requirements of’ Rule 9(j)(2). This conclusion is incorrect.

Initially, I again note that nowhere in Moore’s complaint does she “specifically assert” that she will seek to have the person who reviewed the medical care “qualified as an expert witness by motion under Rule 702(e)” as required by Rule 9(j)(2). Further, Rule 9(j)(2) requires a plaintiff to file a Rule 702(e) motion along with the complaint. In this case, Moore filed a Rule 702(e) motion, but that motion was filed more than 15 months after the complaint was filed. Unequivocally, Moore failed to satisfy the mandate of Rule 9(j)(2), leading to the inescapable determination that the majority’s conclusion on that issue is incorrect.

Because Moore has failed to satisfy the pleading requirements of Rule 9(j)(2), and because Moore did not satisfy Rule 9(j)(3), Moore’s complaint should have been dismissed — and the trial court’s judgment should be affirmed — unless the complaint satisfied the pleading requirements of Rule 9(j)(l). I conclude that it did not.

*214I acknowledge that Moore’s complaint, on its face, appears to satisfy the pleading requirements of Rule 9(j)(l): It contains a specific assertion that the medical care had been reviewed by a person who (1) is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence, and (2) is willing to testify that the medical care did not comply with the applicable standard of care. However, this Court has held that “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 [] appropriate.” Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 255, 677 S.E.2d 465, 477 (2009) (quoting Ford v. McCain, 192 N.C. App. 667, 672, 666 S.E.2d 153, 157 (2008)).

In considering whether a plaintiff’s Rule 9(j) statement is supported by the facts, a court must consider the facts relevant to Rule 90) and apply the law to them. In such a case, this Court does not inquire as to whether there was any question of material fact, nor do we view the evidence in the light most favorable to the plaintiff. Rather, our review of Rule 9Q) compliance is de novo, because such compliance clearly presents a question of law.

Id. at 255-56, 677 S.E.2d at 477 (internal.quotation marks, citations, and ellipsis omitted).

The dispositive question in this appeal is whether Moore’s Rule 9(j)(l) statement that her expert Dr. Dunn “is reasonably expected to qualify as an expert witness under Rule 702” is supported by the facts. The majority concludes that Moore’s expectation that Dr. Dunn would qualify as an expert under Rule 702 was reasonable. I disagree.

Rule 702 of the North Carolina Rules of Evidence provides that a proposed expert in a medical malpractice action “shall not give testimony on the appropriate standard of health care” unless the proposed expert is a licensed health care provider and meets the following criteria:

During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:
a. The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered ... or
*215b. The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered ....

N.C. Gen. Stat. § 8C-1, Rule 702(b) (2009).1

In this case, because Dr. Dunn is a licensed dentist, because Dr. Dunn testified that he had spent no time, instructing students during the year immediately preceding the date of Moore’s alleged injury, and because Dr. Dunn is admittedly in the same health profession as Dr. O’Hearn and Dr. Proper, the more specific issue is whether Dr. Dunn devoted a majority of his professional time to the “active clinical practice” of general dentistry during the year immediately preceding the date of Moore’s alleged injury. I conclude that, based on his description of his professional time, Dr. Dunn did not meet this Rule 702 requirement.

In his deposition, Dr. Dunn testified that, assuming a year of 32-hour workweeks (i.e., four eight-hour days), he spent less than five percent of that time, or an average of less than 1.6 hours per week, in the clinical practice of dentistry, filling in for other dentist friends who needed the help. Dr. Dunn clarified that testimony in a subsequent affidavit, stating that the five-percent figure referred to “five percent of my entire time” — which time included running for and holding public office, spending time with his grandchildren, and golfing — and not five percent of his “professional time.” Dr. Dunn then stated that 100 percent of the time that he was engaged in dentistry— his learned profession and, thus, his “professional time” — was spent in the clinical practice of dentistry. The upshot of Dr. Dunn’s testimony is that he was engaged in the clinical practice of dentistry 100 percent of his “professional time,” which was five percent of his “entire time” of a year’s worth of 32-hour workweeks.

Assuming, without deciding, that Dr. Dunn’s interpretation of “professional time” is correct — that “professional time” is limited to time spent on activities related to one’s health profession and does not include other quasi-professional activities like holding public office — I nonetheless conclude that the majority of Dr. Dunn’s pro*216fessional time was not devoted to the “active clinical practice” of dentistry as required by Rule 702(b).

“When the language of a statute is clear and unambiguous, it must be given effect and its clear meaning may not be evaded by an administrative body or a court under the guise of construction.” Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002). The clear and unambiguous language of Rule 702 requires that a proposed expert’s clinical practice not only must constitute the majority of that expert’s professional time, but also that that clinical practice must be “active.” N.C. Gen. Stat. § 8C-1, Rule 702. It is this mandate of “active” clinical practice that Dr. Dunn fails to meet.

“Words not defined in [a] statute are given their plain meaning so long as it is reasonable to do so.” Formyduval v. Bunn, 138 N.C. App. 381, 386, 530 S.E.2d 96, 100 (2000) (quoting Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998), cert. denied, 526 U.S. 1098, 143 L. Ed. 2d 671 (1999)) (internal quotation marks omitted). “Dictionaries may be used to determine the plain meaning of words.” Id. at 387, 530 S.E.2d at 100-01 (citing Hunter v. Kennedy, 128 N.C. App. 84, 86, 493 S.E.2d 327, 328 (1997)).

Of the several dictionary definitions of “active,” the most reasonable in this context is “disposed to action,” as in “energetic, diligent.” Webster’s Third New International Dictionary, (Unabridged 2002). While other of the definitions — such as “characterized by action rather than contemplation or speculation” or “engaged in an action or activity,” id. — present themselves as reasonable alternatives, these alternatives would render the statute’s use of either the word “active” or “clinical” superfluous in that this Court has previously defined “clinical” in this context to mean nearly the same thing, i.e., “based on or pertaining to actual experience in the observation and treatment of patients.” Formyduval, 138 N.C. App. at 391, 530 S.E.2d at 103 (quoting 2 J.E. Schmidt, Attorney’s Dictionary of Medicine C-310 (1999)). Because interpretation yielding superfluity is disfavored, State v. Coffey, 336 N.C. 412, 417, 444 S.E.2d 431, 434 (1994) (holding that “a statute should not be interpreted in a manner which would render any of its words superfluous”), it is more reasonable to interpret the' requirement of “active” clinical practice as requiring “energetic and diligent” clinical practice, as opposed to requiring mere non-speculative, non-inactive clinical practice.

The effect of this interpretation of an active clinical practice necessarily is the creation of a baseline level of proposed experts’ *217“activeness,” below which a proposed expert’s clinical practice is not sufficiently active to satisfy the requirements of Rule 702(b). Were it otherwise, a proposed expert who devoted 0.01 hours per year to the clinical practice of his health profession — perhaps a general dentist who cleaned one tooth in a year and had no other professional activities — would be eligible to testify under Rule 702(b). The absurdity of this result is magnified by the fact that such an expert would be eligible to testify while a proposed expert who devoted slightly less than 50 percent of a full year’s worth of professional time to clinical practice — or 999 hours in a 40-hour per week, 50-week year — -and slightly more than 50 percent of that professional time to administrative functions would be ineligible. Certainly there must be some level at which a proposed expert’s clinical practice cannot be considered active.

While that minimum level of activity may vary among cases and needs no precise determination in this case, in my view, a clinical practice of 1.6 hours per week is not sufficiently active to qualify a proposed expert under Rule 702(b). In support of this conclusion, I note that the intent of the legislature in amending Rule 702 to include the current 702(b) requirements, as indicated by the title of the act introducing those requirements, was to

Prevent Frivolous Medical Malpractice Actions by Requiring that Expert Witnesses in Medical Malpractice Cases Have Appropriate Qualifications to Testify on the Standard of Care at Issue and to Require Expert Witness Review as a Condition of Filing a Medical Malpractice Action.

Act of June 20, 1995, ch. 309, 1995 N.C. Sess. Laws 611. By requiring “appropriate qualifications” of experts as a means to prevent frivolous medical malpractice actions, the legislature indicated a clear desire to require the proposed experts who review cases to have adequate familiarity with the relevant standard of care. Id.; see also Formyduval, 138 N.C. App. at 390, 530 S.E.2d at 102 (noting that the purpose of Rule 702(b) is “to insure that malpractice actions are ‘reviewed by qualified practitioners of a competence similar to’ defendant of suit” (quoting April 19,1995 Minutes of the House Select Comm. On Tort Reform,)). One cannot seriously contend that a proposed expert who devotes 0.01 hours per year to the clinical practice of dentistry is qualified to testify to the appropriate standard of care in a health profession that Dr. Dunn describes as “always changing,” and allowing the qualification of such a proposed expert would seriously undermine the legislature’s attempt to prevent frivolous med*218ical malpractice claims. I conclude that a clinical practice of no more than 1.6 hours per week is likewise insufficient to qualify a proposed expert under Rule 702(b).

Nevertheless, the question in this case is not whether Dr. Dunn should qualify under Rule 702(b), but whether Moore’s expectation that Dr. Dunn would qualify as an expert witness under Rule 702 was reasonable and supported by the facts. “In other words, were the facts and circumstances known or those which should have been known to [Moore] such as to cause a reasonable person to believe that [Dr. Dunn] would qualify as an expert under Rule 702.” See Trapp v. Maccioli, 129 N.C. App. 237, 241, 497 S.E.2d 708, 711 (1998) (citing Black’s Law Dictionary 1265 (6th ed. 1990) for the definition of reasonable belief). ■

The facts and circumstances known or which should have been known to Moore are as follows: In her expert witness designation, Moore alleged that Dr. Dunn was “licensed to practice in North Carolina, having practiced in Asheville from 1973 until [his] retirement in 1997”; in response to interrogatories, Dr. Dunn stated that he “maintained a valid license to practice general dentistry in good standing since [his] retirement in July of 1997”; and in his deposition, Dr. Dunn testified that his clinical practice amounted to less than five percent of a 32-hour workweek, or an average of 1.6 hours per week.

In my view, these facts and circumstances show that Moore’s expectation that Dr. Dunn would qualify as an expert witness was not reasonable. First, the fact that Dr. Dunn retired nine years prior to the alleged malpractice — and had been retired for almost 12 years by the time Moore filed her complaint — should have indicated to Moore that Dr. Dunn likely was not maintaining an active clinical practice. This fact would have led a reasonable person to inquire as to the extent of Dr. Dunn’s clinical practice in the year prior to the alleged malpractice. Second, and more importantly, a reasonable person who conducted such an inquiry would not have concluded that a dentist who spends an average of 1.6 hours per week in the clinical practice of dentistry would qualify as an expert under a statute that requires a proposed expert to have devoted the majority of his professional time to the active clinical practice of dentistry.

As discussed supra, the Rule 702(b) requirement of active clinical practices requires the proposed expert to have an energetic and diligent practice. In my view, no reasonable person would conclude that 1.6 hours per week constitutes an active, energetic, and diligent *219health care practice.2 Rather, a reasonable person would consider such practice to be sporadic, quiescent, and sedentary, i.e., inactive. Accordingly, I agree with the trial court that Moore’s expectation that Dr. Dunn would qualify was unreasonable, and I conclude that the trial court did not err in granting summary judgment for Defendants based on Moore’s failure to satisfy the certification requirements of Rule 9(j).

Despite the failure of Moore’s complaint to satisfy Rule 9Q), Moore argues that summary judgment for Defendants was nevertheless error because “the case could still proceed on the theories of [Defendant] having failed to exercise his best judgment and reasonable care,” which theories, Moore urges, do not require a Rule 9(j) certification. Whether Moore is correct that those theories of recovery do not require certification is irrelevant because Moore failed to assert such theories in her complaint. As previously held by this Court, a plaintiff is bound by her pleadings, Sturgill v. Ashe Mem’l Hosp., Inc., 186 N.C. App. 624, 628, 652 S.E.2d 302, 305 (2007) (“In determining whether or not Rule 9(j) certification is required, the North Carolina Supreme Court has held that ‘pleadings have a binding effect as to the underlying theory of plaintiff’s negligence claim.’ ” (quoting Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 102 (2002)), and in this case, Moore has only alleged that she is entitled to recover damages from (1) Dr. Proper’s furnishing of tooth extraction services and failure to furnish post-extraction care, and (2) Dr. O’Hearn’s failure to furnish post-extraction care. Such a claim for damages “arising out of the furnishing or failure to furnish professional services” in the performance of dental care constitutes a medical malpractice action. N.C. Gen. Stat. § 90-21.11 (2009). As Moore has only asserted this medical malpractice claim, she is required to meet the certification requirements of Rule 9(j). Moore’s failure to do so warrants dismissal of her claim.

*220Based on the foregoing, I conclude that the trial court appropriately granted summary judgment for Defendants and properly dismissed Moore’s claim.3 The judgment of the trial court should be affirmed.

. Rule 702 contains additional rules for specialists that are not relevant to this appeal because Dr. Dunn testified in his deposition that he practices only general dentistry and has no specialization. Cf. Roush v. Kennon, 188 N.C. App. 570, 575-76, 656 S.E.2d 603, 607 (2008) (discussion of how a general dentist may be qualified as a specialist).

. Moore points to Coffman v. Roberson, 153 N.C. App. 618, 571 S.E.2d 255 (2002), disc. review denied, 356 N.C. 668, 577 S.E.2d 111 (2003) — in which this Court held that a proposed expert who “did some volunteer teaching” that “didn’t take up a great deal of time” was qualified to testify under Rule 702, id. at 623-24, 571 S.E.2d 258-59 — to support her argument that all that is required is that the clinical practice constitute a majority of one’s professional time and that the extent, or activeness, of the clinical practice is irrelevant. First, this interpretation ignores the “active” requirement of Rule 702(b). Second, Coffman is inapposite in that it addresses only Rule 702(b)(2)(b) and professional time devoted to “[t]he instruction of students in an accredited health professional school,” and does not address Rule 702(b)(2)(a) and the active clinical practice of a health profession. Unlike 702(b)(2)(a), 702(b)(2)(b) contains no similar “active” requirement. N.C. Gen. Stat. § 8C-1, Rule 702(b)(2).

. Moore makes a final argument that the trial court erred by denying her Rule 702(e) motion. This argument need not be addressed because the complaint was properly dismissed based on the pleadings.