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Robinson v. Entwistle3/2/1999
Appeal by plaintiff from judgment entered 9 December 1997 by Judge James C. Davis in Cabarrus County Superior Court. Heard in the Court of Appeals 6 January 1999.
The decedent, William J. Robinson, Sr., died on 18 August 1994. On 12 August 1996, plaintiff initiated a medical malpractice action by filing a civil summons along with an order extending time to file her complaint. The order extended the statute of limitations for the filing of the lawsuit until 1 September 1996. On 30 August 1996, plaintiff filed a complaint alleging negligence on the part of the defendants, but it did not contain allegations that the medical care had been reviewed by an expert as required by Rule 9(j) for medical malpractice actions. Before the defendants filed responsive pleadings, plaintiff amended her complaint to include a paragraph which purported to comply with Rule 9(j). Later, on 21 April 1997, plaintiff dismissed the amended complaint without prejudice pursuant to Rule 41(a)(1).
On 6 June 1997, plaintiff re-filed this medical malpractice action. Both defendants answered the complaint and filed motions to dismiss for failure to comply with Rule 9(j), for judgment on the pleadings pursuant to Rule 12(c), and for summary judgment. The trial court denied the Rule 12(c) motions having considered evidence beyond the pleadings and denied the motions to dismiss for failure to comply with Rule 9(j) finding that the second complaint complied with the requirements set out in the rule. However, the trial court granted the motions for summary judgment in favor of the defendants and found that the statute of limitations had expired for the initiation of the action.
The trial court made the following findings of fact and Conclusions of law:
"5. That the August 30, 1996 complaint filed by the plaintiff did not comply with Rule 9(j) of the North Carolina Rules of Civil Procedure because it did not allege that the medical care had been reviewed by an expert who was reasonably expected to qualify as an expert under Rule 702 and who was willing to testify that the medical care did not comply with the applicable standard of care, it did not assert that the medical care had been reviewed by a person that the complainant would seek to have qualified as an expert witness by motion under Rule 702(e) and who was willing to testify that the medical care did not comply with the applicable standard of care, and it did not allege facts establishing negligence under the common law doctrine of res ipsa loquitur. "6. That on October 28, 1996, the plaintiff filed an amendment to the August 30, 1996, complaint alleging that the medical care of the plaintiff had been reviewed by Dr. Read, a vascular surgeon, who was willing to testify that the medical care did not comply with the applicable standard of care. "7. Dr. Read did not qualify as an expert under Rule 702 of the North Carolina Rules of Evidence to testify as to the standard of care applicable to emergency room physicians. ". . . "9. That on April 21, 1997, the plaintiff voluntarily dismissed the action commenced by the August 30, 1996 complaint because Dr. Read's review of the medical care of William J. Robinson, Sr. did not meet the pleading requirements of Rule 9(j) of the North Carolina Rules of Civil Procedure. "10. The plaintiff did not have William J. Robinson, Sr.'s medical care reviewed by an expert who qualifies under Rule 702 of the North Carolina Rules of Evidence until more than two years after William J. Robinson, Sr.'s death. ". . . "CONCLUSIONS OF LAW "1. That the two-year statute of limitations for wrongful death actions applies to this case and began to run on August 19, 1994, the date of William J. Robinson, Sr.'s death. "2. That the stat
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