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Bass v. Durham County Hospital Corp.6/3/2003
edical 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 56970.
The 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.G.S. § 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.G.S. § 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.
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