 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Keith v. Northern Hospital District of Surry County5/5/1998
Judy Ann Keith (plaintiff) appeals from an order of the trial court denying her motion to amend her complaint and dismissing her action against Northern Hospital District of Surry County (defendant).
The facts are as follows: On 5 June 1996, the plaintiff filed a "Motion To Extend the Statute of Limitations" for filing a medical malpractice claim in accordance with Rule 9(j) of the North Carolina Rules of Civil Procedure. The trial court granted the motion and the granting of that motion is not an issue in this appeal. On 4 October 1996, the plaintiff filed a complaint alleging medical malpractice against Kenneth D. Gitt, M.D. (Dr. Gitt), Tom J. Vaughn, M.D. (Dr. Vaughn), Mt. Airy OB-GYN Center, Inc. (Center), and the defendant. The complaint did not include any allegations as required by Rule 9(j) of the Rules of Civil Procedure. The claims against Dr. Gitt, Dr. Vaughn, and the Center were dismissed by the trial court on two grounds: failure to state a claim and failure to comply with Rule 9(j). The plaintiff did not appeal those dismissals. In the defendant's answer it sought dismissal of the complaint on the ground that the plaintiff had not complied with Rule 9(j). On 23 January 1997, the plaintiff sought to amend her complaint to include allegations that a "person who reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence" had reviewed her medical care and was willing to testify that the medical care received by the plaintiff "did not comply with the applicable standard of care . . . ."
On 10 March 1997, the plaintiff's motion to amend and the defendant's motion to dismiss came on for hearing before the trial court. The trial court denied the plaintiff's motion to amend and allowed the defendant's motion to dismiss. The dismissal was with prejudice. In its order, the trial court concluded that the plaintiff failed to comply with Rule 9(j) because:
he failed to assert in complaint that the care provided to her had been reviewed by a person who was reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence, and who was willing to testify that the care provided to her did not comply with the applicable standard of care.
The trial court articulated no reason for denying the plaintiff's motion to amend.
The dispositive issue is whether a medical malpractice complaint that fails to include the Rule 9(j) certification can be subsequently amended pursuant to Rule 15 to include the Rule 9(j) certification.
Rule 9(j) of our Rules of Civil Procedure provides that complaints alleging:
edical malpractice by a health care provider as defined in G.S. 90-21.11 . . . shall be dismissed unless:
(1) The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care . . . .
N.C.G.S. ยง 1A-1, Rule 9(j) (Supp. 1997). This rule is unambiguous in stating that the complaint "shall be dismissed" if the complaint does not include a certification that the medical care at issue has been reviewed by a person "reasonably expected to qualify as an expert" and "who is willing to testify that the medical care [which is the subject of the pleading] did not comply with the applicable standard of care." When the statutory language is "clear and unambiguous, 'there is no room for judicial construction,' and the statute must be given effect in accordance with its plain and definite meaning." Avco Financial Services v. Isbell, 67 N.C. A
Page 1 2 3 4 North Carolina Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|