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Phillips v. A Triangle Women's Health Clinic12/31/2002
PUBLISHED
Michele Battle Phillips ("plaintiff") appeals the dismissal of her medical malpractice claim and the granting of summary judgment on her unfair and deceptive business practices claim against Stuart L. Schnider, M.D. ("defendant"). We reverse in part and affirm in part.
On or about 29 April 1994, plaintiff underwent an abortion at A Triangle Women's Health Clinic, Inc. ("the Clinic"). Plaintiff selected defendant to perform the procedure based on his representations that he was a board certified specialist in obstetrics and gynecology ("OBGYN"). During the abortion procedure, plaintiff incurred severe damage to her uterus and bowel that caused excessive hemorrhaging. Plaintiff was immediately transferred to the University of North Carolina Hospital in Chapel Hill where she underwent emergency abdominal surgery. Ultimately, plaintiff had to have a total hysterectomy on 3 March 1995 as a result of the complications arising from the abortion.
On 25 June 1997, plaintiff filed a complaint against defendant in Wake County Superior Court alleging, in part, that defendant was liable for medical malpractice, as well as unfair and deceptive business practices pursuant to Section 75-1.1 of the North Carolina General Statutes. In connection with her medical malpractice claim, plaintiff's complaint included the required certification as per Rule 9(j) of the North Carolina Rules of Civil Procedure. Plaintiff also filed a designation of expert witnesses on 31 July 1998, which designated Michael C. Goodman, M.D. ("Dr. Goodman") as one such expert.
Dr. Goodman's deposition was taken on 18 March 1999. During his deposition, Dr. Goodman testified that he had received a telephone call from plaintiff's counsel, Robert J. Burford ("Burford"), in May of 1997 regarding plaintiff's case, but Dr. Goodman could not remember the substance of that conversation. When asked whether he would have expressed an opinion regarding plaintiff's case over the phone or waited until he had first reviewed plaintiff's records, Dr. Goodman testified: "Well, I probably would have given [Burford] an idea of whether I thought I should see the case or not. That's about as far as I could go over the telephone." Dr. Goodman further testified that he reviewed plaintiff's records sometime after his conversation with Burford and sent Burford a letter dated 11 November 1997 containing his initial opinions regarding the care plaintiff had received from defendant.
On 8 November 1999, defendant filed a motion to dismiss and/or summary judgment on plaintiff's medical malpractice claim. This motion was based primarily on defendant's belief that Dr. Goodman's deposition failed to establish his "willingness to testify" as a medical expert on plaintiff's behalf prior to the filing date of her lawsuit as required by Rule 9(j). However, before the trial court ruled on this motion, the affidavit of Dr. Goodman was filed on 1 December 1999. Relevant portions of the affidavit were as follows:
4. From Mr. Burford's prior experience with me, he is aware that I am willing to serve as an expert witness at trial on any case that I review, and at [plaintiff's] trial I would be willing to testify regarding my opinion of the appropriateness of the medical care rendered
5. My recollection is that in his discussion with me in May 1997, Mr. Burford read information to me verbatim from the patient's medical records, as well as gave me a factual outline of the medical care rendered according to [plaintiff's] medical records . . . .
8. Based upon the information outlined to me . . . I gave Mr. Burford my opinion that the double perforation of [plaintiff's] uterus, the perforatio
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