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Bass v. Durham County Hospital Corp.6/3/2003
PUBLISHED
Plaintiff, Cheryl S. Bass, appeals an order of the trial court dismissing her negligence claims with prejudice and an order denying her motion to set aside the dismissal under Rule 60(b). For the reasons discussed herein, we reverse and remand.
On 2 December 1999, plaintiff filed a complaint alleging that she was injured as a result of medical negligence on the part of defendants Dr. Rebecca S. Rich and Durham County Hospital Corporation. The alleged injury occurred on 3 August 1996. Plaintiff further alleged that she suffers from reflex sympathetic dystrophy in her right arm resulting from the improper insertion of an intravenous line during her treatment.
Plaintiff's original complaint was filed on the last day of a 120day extension granted pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure. The complaint did not contain a certification that plaintiff had a medical expert who: (a) was reasonably expected to qualify as an expert; (b) had reviewed plaintiff's medical care; and (c) was willing to testify that the medical care plaintiff received did not comply with the applicable standard of care, as required by Rule 9(j). On 13 December 1999, plaintiff filed an amended complaint under Rule 15(a) prior to the service of a responsive pleading. The amended complaint contained the certification required by Rule 9(j).
On 3 January 2000, Rich filed an answer, a motion for judgment on the pleadings, and a motion for summary judgment. These motions contended that plaintiff's claims were barred by the statute of limitations. The hospital answered on 20 January 2000 and filed a Rule 12(b)(6) motion to dismiss. On 24 May 2000, Judge Donald W. Stephens denied each of Rich's motions and held that plaintiff's amended complaint containing the Rule 9(j) certification related back to the 2 December 1999 filing of the original complaint. On 29 May 2001, plaintiff voluntarily dismissed her claims without prejudice pursuant to Rule 41(a) of the North Carolina Rules of Civil Procedure.
Plaintiff re-filed her complaint, which included a Rule 9(j) certification, on 12 June 2001. On 20 July 2001, Rich filed an answer and moved for judgment on the pleadings asserting that: (1) the original complaint was filed more than three years after the alleged events that gave rise to the suit; (2) the complaint failed to state a claim upon which relief could be granted; and (3) plaintiff did not comply with Rule 9(j). The hospital filed a similar motion for judgment on the pleadings on 10 August 2001.
Defendants' motions were heard and granted by Judge Narley L. Cashwell. An order was entered dismissing plaintiff's complaint with prejudice. Plaintiff filed a notice of appeal on 28 November 2001. On 20 February 2002, plaintiff filed a Rule 60(b) motion to set aside the prior order of dismissal. On 10 May 2002, plaintiff's motion was denied by Judge Henry P. Hight, Jr. On 23 May 2002, plaintiff filed a notice of appeal from the denial of the motion to set aside.
In her first assignment of error, plaintiff argues the trial court erred in granting defendants' motions for judgment on the pleadings. We agree.
A motion for judgment on the pleadings pursuant to Rule 12(c) should be granted when all material questions of fact are resolved in the pleadings, and only issues of law remain. Mabrey v. Smith, 144 N.C. App. 119, 548 S.E.2d 183, rev. denied, 354 N.C. 219, 554 S.E.2d 340 (2001) (citing Cash v. State Farm Mut. Auto Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, aff'd, 353 N.C. 257, 538 S.E.2d 569 (2000)). This motion, disfavored by the courts, liberally construe the pleadings in the light most favorable to the non-movant.
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