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Allen v. Carolina Permanente Medical Group8/1/2000
Appeal by plaintiff from an order entered 7 June 1999 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 16 May 2000.
Plaintiff-appellant Audrey E. Allen, administratrix of the estate of Natt Albert Allen, Sr. ("plaintiff"), appeals the trial court's order dismissing her action with prejudice on the basis that she failed to comply with Rule 9(j) of the N.C. Rules of Civil Procedure by tendering a witness she could not have reasonably expected to qualify as an expert witness under Rule 702 of the N.C. Rules of Evidence. We agree and thus, affirm the trial court's order.
Facts pertinent to this case are that plaintiff's husband, Natt Albert Allen, Sr. ("Mr. Allen") experienced chest pain in three different episodes on 1 July 1996. At some time during or just following his third bout of pain, Mr. Allen took two nitroglycerin tablets. After thirty minutes, having obtained no relief, Mr. Allen arrived at Kaiser Permanente's urgent care clinic, sweating and complaining of chest pain and shortness of breath. The treating physician on duty at the time, defendant-appellee Dan Franklin Burroughs, M.D. ("Dr. Burroughs"), worked for defendant-appellee Carolina Permanente Medical Group (collectively with Dr. Burroughs, "defendants"), and was board certified in family practice medicine. Dr. Burroughs examined Mr. Allen, during which time Mr. Allen advised: that he had a history of coronary artery disease, that he had had a cardiac catherization approximately five years before, that he smoked and drank alcohol, and that he had experienced the three pain attacks while on his job "pulling carpet." Dr. Burroughs then administered an EKG to him which results were normal, prescribed medication for Mr. Allen and referred him to a cardiologist. Dr. Burroughs further recorded in Mr. Allen's medical record that at the time of the examination, Mr. Allen was pain-free. Mr. Allen died the next morning.
On 5 June 1998, plaintiff filed her complaint alleging that Mr. Allen's death was
the foreseeable result of the negligent acts and omissions of Defendants Kaiser and Burroughs.
[She further alleged that] n the diagnosis, care and treatment, or lack thereof . . . Defendant Burroughs . . . negligently violated the accepted standard of medical care among members of the same healthcare profession with similar training and experience situated in the same or similar communities . . . in failing to comply with the standards of care of the profession; in failing to apply knowledge with reasonable diligence; and in failing to use best judgment . . . .
Furthermore as procedurally required under N.C. Gen. Stat. ยง 1A-1, Rule 9(j), plaintiff specifically pled that Dr. Burrough's medical care of Mr. Allen had been reviewed by general surgeon Dr. B. Michael Smith ("Dr. Smith"), "a person who is reasonably expected to qualify as an expert witness under Rule 702 . . . a person who is willing to testify that said medical care did not comply with the applicable standard of care."
Plaintiff has preserved three assignments of error: (1) that the trial court improperly allowed defendants' motion to dismiss under Rules 12(b)(6) and 9(j) of the North Carolina Rules of Civil Procedure and Rule 702 of the North Carolina Rules of Evidence; (2) that the trial court improperly dismissed her complaint under Rule 56 of North Carolina Rules of Civil Procedure; and (3) that the trial court improperly dismissed her complaint pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure for failure to comply with Rule 9(j) and Rule 702. Due to our disposition of this case, we only address plaintiff's last argument.
We be
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