Fairfield v. WakeMed , 261 N.C. App. 569 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-295
Filed: 2 October 2018
Wake County, No. 17 CVS 4362
STARLA N. FAIRFIELD and LENNY FAIRFIELD, husband and wife, Plaintiffs,
v.
WAKEMED, also doing business as WAKEMED HEALTH & HOSPITALS; MARSHA
M. SMITH, M.D.; BENJAMIN GERMAN, M.D.; CHUDARATNA BHARGAVA, M.D.;
and JOHN & JANE DOE MEDICAL STAFF, Defendants.
Appeal by plaintiff from order entered 16 November 2017 by Judge W.O.
Smith, III in Wake County Superior Court. Heard in the Court of Appeals 5
September 2018.
Michael A. Jones for plaintiffs-appellants.
Cranfill Sumner & Hartzog LLP, by Carl Newman and Katherine Hilkey-
Boyatt, for defendants-appellees.
DAVIS, Judge.
In this case, we must once again determine the effect of a litigant’s failure to
fully comply with the pleading requirements imposed by Rule 9(j) of the North
Carolina Rules of Civil Procedure on a complaint alleging medical malpractice. Starla
Fairfield and Lenny Fairfield (“Plaintiffs”) appeal from the trial court’s order
dismissing this action based on their noncompliance with Rule 9(j). We affirm.
Factual and Procedural Background
FAIRFIELD V. WAKEMED
Opinion of the Court
We have summarized the pertinent facts below using Plaintiffs’ own
statements from their complaint, which we treat as true in reviewing a trial court’s
order granting a motion to dismiss. See, e.g., Stein v. Asheville City Bd. of Educ., 360
N.C. 321, 325, 626 S.E.2d 263, 266 (2006) (“When reviewing a complaint dismissed
under Rule 12(b)(6), we treat a plaintiff’s factual allegations as true.”).
On 10 May 2014, Starla Fairfield was admitted to WakeMed Health &
Hospitals (“WakeMed”) in connection with an accidental overdose of acetaminophen.
During her treatment, she was given a dose of Mucomyst that was approximately five
times greater than the recommended dose. Medical personnel at WakeMed contacted
Carolinas Poison Center, and emergency dialysis was ultimately performed on Mrs.
Fairfield. Mrs. Fairfield and her husband were informed by medical staff at
WakeMed that the staff was “only aware of two other cases of Mucomyst overdose,
both resulting in death and severe brain damage, and therefore, that Mrs. Fairfield
would also most likely die.”
Mrs. Fairfield was subsequently released from WakeMed. As a result of this
incident, she continues to experience physical and emotional pain and suffering.
On 13 April 2017, Mrs. Fairfield and her husband filed a complaint in Wake
County Superior Court naming as defendants WakeMed; Marsha M. Smith, M.D.;
Benjamin German, M.D.; Chudaratna Bhargava, M.D.; and John and Jane Doe
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Opinion of the Court
Medical Staff.1 In their complaint, Plaintiffs alleged claims for medical malpractice,
negligent infliction of emotional distress, and loss of consortium. All of these claims
were alleged to have arisen out of defendants’ medical negligence in treating Mrs.
Fairfield.
The Complaint contained the following provision:
RULE 9(j) CERTIFICATION
Counsel for the Plaintiffs hereby certify and affirm, that
prior to the filing [sic] this lawsuit, pursuant to Rule 9 (j)
of the North Carolina Rules of Civil Procedure, that certain
medical records and the medical care received by Mrs.
Fairfield has been reviewed by a physician 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 standard of care provided by
Defendants did not comply with the applicable standard of
care.
(Emphasis added.)
All of the Defendants filed timely answers and motions to dismiss pursuant to
Rule 12(b)(6). On 9 November 2017, a hearing on Defendants’ motions was held
before the Honorable W.O. Smith, III, in Wake County Superior Court. On 16
November 2017, the trial court entered an order dismissing this action based on its
determination that Plaintiffs had failed to comply with Rule 9(j). Plaintiffs filed a
timely notice of appeal.
1Plaintiffs subsequently took a voluntary dismissal of their claims against Dr. Bhargava, Dr.
German, and John and Jane Doe Medical Staff. Therefore, WakeMed and Dr. Smith are the only
remaining defendants.
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FAIRFIELD V. WAKEMED
Opinion of the Court
Analysis
I. Rule 9(j)
In this appeal, Plaintiffs contend that the trial court erred in determining that
their complaint was not in compliance with Rule 9(j).
The standard of review of an order granting a Rule 12(b)(6)
motion is whether the complaint states a claim for which
relief can be granted under some legal theory when the
complaint is liberally construed and all the allegations
included therein are taken as true. On appeal, we review
the pleadings de novo to determine their legal sufficiency
and to determine whether the trial court’s ruling on the
motion to dismiss was correct.
Feltman v. City of Wilson, 238 N.C. App. 246, 251, 767 S.E.2d 615, 619 (2014).
“Dismissal is proper when one of the following three conditions is satisfied: (1)
the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the
complaint on its face reveals the absence of facts sufficient to make a good claim; or
(3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.”
Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 74, 752
S.E.2d 661, 663 (2013) (citation omitted).
A plaintiff’s pleading in a medical malpractice action, however, “must meet a
higher standard than generally required to survive a motion to dismiss . . . . [T]he
requirements of Rule 9(j) must be met in the complaint in order to survive a motion
to dismiss.” Alston v. Hueske, 244 N.C. App. 546, 551-52, 781 S.E.2d 305, 309 (2016).
Rule 9(j) states, in pertinent part, as follows:
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FAIRFIELD V. WAKEMED
Opinion of the Court
(j) Medical malpractice. — Any complaint alleging medical
malpractice by a health care provider . . . shall be dismissed
unless:
(1) The pleading specifically asserts that the medical
care and all medical records pertaining to the
alleged negligence that are available to the plaintiff
after reasonable inquiry have 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. R. Civ. P. 9(j) (emphasis added).
Our Supreme Court has explained that Rule 9(j) was intended to serve “as a
gatekeeper, enacted by the legislature, to prevent frivolous malpractice claims by
requiring expert review before filing of the action.” Moore v. Proper, 366 N.C. 25, 31,
726 S.E.2d 812, 817 (2012). Our courts have strictly enforced Rule 9(j)’s “clear and
unambiguous” language as requiring dismissal of a medical malpractice action when
the plaintiff’s pleading is not in compliance with the Rule’s requirements. Thigpen v.
Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002) (citation and quotation marks
omitted). See id. (“[M]edical malpractice complaints have a distinct requirement of
expert certification with which the plaintiffs must comply. Such complaints will
receive strict consideration by the trial judge. Failure to include the certification
leads to dismissal.”).
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FAIRFIELD V. WAKEMED
Opinion of the Court
Here, the Rule 9(j) certification in Plaintiffs’ complaint merely asserted that
“certain” of Mrs. Fairfield’s medical records had been reviewed by a physician who
was expected to provide expert testimony that Defendants’ treatment of her fell below
the applicable standard of medical care. However, as quoted above, the plain
language of Rule 9(j) requires that a plaintiff’s pleading in a medical malpractice
action contain an explicit certification that “all” medical records pertaining to the
allegedly negligent acts have been reviewed.
We find instructive our Court’s decision in Alston in which we similarly
addressed a litigant’s failure to strictly comply with the requirements of Rule 9(j). In
Alston, the plaintiff brought a medical malpractice action arising from the death of
the decedent during a surgical procedure. Alston, 244 N.C. App. at 547-48, 781 S.E.2d
at 307. In an attempt to comply with Rule 9(j), the complaint alleged the following:
29. Prior to commencing this action, the medical
records were reviewed and evaluated by a duly Board
Certified [sic] who opined that the care rendered to
Decedent was below the applicable standard of care.
30. . . . The medical care referred to in this complaint
has been reviewed by person[s] who are reasonably
expected to qualify as expert witnesses, or whom the
plaintiff will seek to have qualified as expert witnesses
under Rule 702 of the Rules of Evidence, and who is willing
to testify that the medical care rendered plaintiff by the
defendant(s) did not comply with the applicable standard
of care.
Id. at 548, 781 S.E.2d at 307.
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FAIRFIELD V. WAKEMED
Opinion of the Court
The trial court granted the defendants’ motion to dismiss on the ground that
the Rule 9(j) certification was defective. We affirmed the court’s order and stated the
following in explaining our ruling:
The wording of the complaint renders compliance
with 9(j) problematic. A plaintiff can avoid this result by
using the statutory language. Rule 9(j) requires “the
medical care and all medical records” be reviewed by a
person reasonably expected to qualify as an expert witness
and who is willing to testify the applicable standard of care
was not met. According to the complaint, the medical care
was reviewed by someone reasonably expected to qualify as
an expert witness who is willing to testify that defendants
did not comply with the applicable standard of care.
However, the complaint alleges medical records were
reviewed by a “Board Certified” that said the care was
below the applicable standard of care. Thus, the complaint
does not properly allege the medical records were reviewed
by a person reasonably expected to qualify as an expert
witness.
This omission in the complaint unnecessarily raises
questions about . . . the witness being “reasonably
expected” to qualify as an expert under Rule 702. The only
information we have is that the witness is “Board
Certified.” We do not know whether the witness is a
certified doctor or nurse, or even another health care
professional. We also cannot say whether the “Board
Certified” person is of the same or similar specialty as
would be required to testify [that] Hueske violated a
standard of care. Simply put, we do not have enough
information to evaluate whether this witness could
reasonably be expected to qualify as an expert in this case.
The legislature passed Rule 9(j) to require a more
stringent procedure to file a medical malpractice claim.
Although pleadings are generally construed liberally,
legislative intent as well as the strict interpretation given
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FAIRFIELD V. WAKEMED
Opinion of the Court
to Rule 9(j) by the North Carolina Supreme Court require
us to find the wording of this complaint insufficient to meet
the high standard of Rule 9(j).
Id. at 552-53, 781 S.E.2d at 310.
Thus, Alston demonstrates the degree to which North Carolina courts have
strictly enforced the provisions of Rule 9(j). Although the specific reason that
Plaintiffs’ complaint fails to fully comply with Rule 9(j) in the present case is distinct
from that existing in Alston, we are nevertheless compelled to reach the same result.
Here, Plaintiffs’ use of the word “certain” instead of “all” in their complaint with
regard to those medical records actually reviewed by their proposed expert witness
constitutes a failure to adhere to Rule 9(j)’s specific requirements. Based on the
unambiguous language of the Rule, all of the relevant medical records reasonably
available to a plaintiff in a medical malpractice action must be reviewed by the
plaintiff’s anticipated expert witness prior to the filing of the lawsuit, and a
certification of compliance with this requirement must be explicitly set out in the
complaint.
Allowing a plaintiff’s expert witness to selectively review a mere portion of the
relevant medical records would run afoul of the General Assembly’s clearly expressed
mandate that the records be reviewed in their totality. Rule 9(j) simply does not
permit a case-by-case approach that is dependent on the discretion of the plaintiff’s
attorney or her proposed expert witness as to which of the available records falling
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FAIRFIELD V. WAKEMED
Opinion of the Court
within the ambit of the Rule are most relevant. Instead, Rule 9(j) requires a
certification that all “medical records pertaining to the alleged negligence that are
available to the plaintiff after reasonable inquiry” have been reviewed before suit was
filed. See N.C. R. Civ. P. 9(j).
The certification here simply did not conform to this requirement. Therefore,
the trial court properly ruled that Plaintiffs had failed to comply with Rule 9(j). See
Fintchre v. Duke Univ., 241 N.C. App. 232, 242, 773 S.E.2d 318, 325 (2015) (affirming
trial court’s dismissal of medical malpractice complaint for noncompliance with Rule
9(j)).
II. Due Process
Plaintiffs also contend that the application of Rule 9(j) in this case violates
their due process rights. As an initial matter, however, Plaintiffs do not cite any legal
authority in support of this argument as required by the North Carolina Rules of
Appellate Procedure. See N.C. R. App. P. 28(b)(6) (“The body of the argument and
the statement of applicable standard(s) of review shall contain citations of the
authorities upon which the appellant relies.”). Therefore, we deem this issue to be
abandoned.
Plaintiffs’ constitutional argument fails substantively as well. Rather than
providing an actual explanation as to how Rule 9(j) violates their due process rights,
they instead candidly concede that “the argument that the Plaintiff[s] now make is
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Opinion of the Court
one asking and recommending of [sic] this Court that the law (i.e., language of Rule
9(j)) requires changing in order to do equity and justice.”
It is axiomatic that such a request for us to rewrite a statute is antithetical to
the proper role of a court in our system of government. As our Supreme Court stated
more than fifty years ago:
When a court, in effect, constitutes itself a superlegislative
body, and attempts to rewrite the law according to its
predilections and notions of enlightened legislation, it
destroys the separation of powers and thereby upsets the
delicate system of checks and balances which has
heretofore formed the keystone of our constitutional
government.
State v. Cobb, 262 N.C. 262, 266, 136 S.E. 674, 677 (1964).
We are not unmindful of the harsh outcomes that can result from the
application of Rule 9(j). However, based on the clear language employed by the
General Assembly and the prior caselaw from our appellate courts that we are bound
to follow, we must interpret Rule 9(j) as it is written. Any modification of the pleading
requirements contained therein must come from the legislative branch rather than
the judicial branch. See In re J.M.D., 210 N.C. App. 420, 427, 708 S.E.2d 167, 172
(2011) (“[N]either we nor the trial court can re-write the statute which the General
Assembly has given us.”).
Conclusion
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FAIRFIELD V. WAKEMED
Opinion of the Court
For the reasons stated above, we affirm the trial court’s 16 November 2017
order.
AFFIRMED.
Judges ELMORE and DILLON concur.
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