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Keith v. Northern Hospital District of Surry County5/5/1998
to the equitable powers of the court under Rule 15. The fact, as noted by the majority, that a dismissal pursuant to Rule 9(j) may be granted without prejudice to refile at a later date does little to allay my feelings in this regard.
In concluding that Rule 15 can effectively be used to amend a medical malpractice action under section 90-21.11 of the General Statutes, I do no violence to the legislative language. I merely construe the two Rules in para materia so as to give meaning to both Rule 9(j) and Rule 15 of our Rules of Civil Procedure.
While the trial court in the instant case may have properly denied an amendment of plaintiff's pleadings under Rule 15(c), this Court must anticipate the probability that there may be an instance where amendment under Rule 15 may be granted in order to save an otherwise meritorious malpractice action. Such discretion is best left in the quarter of the trial court. Therefore, I respectfully concur in the result of the majority only.
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