Kennedy v. DeAngelo , 264 N.C. App. 65 ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-603
Filed: 19 February 2019
Wake County, No. 16 CVS 9401
JOCELYN KENNEDY, Plaintiff,
v.
SAMUEL DEANGELO, DDS; SAMUEL J. DEANGELO, DDS, MS, P.A.; KELLY C.
PRETTYMAN, DDS; CHARLES FERZLI, DDS, P.A. d/b/a SMILES OF CARY and
CHARLES FERZLI, DDS, P.A., Defendants.
Appeal by plaintiff from order entered 26 February 2018 by Judge R. Allen
Baddour in Wake County Superior Court. Heard in the Court of Appeals 14 November
2018.
The Epstein Law Firm, PLLC, by Andrew J. Epstein, for plaintiff-appellant.
Yates, McLamb & Weyher, L.L.P., by John W. Minier and David M. Fothergill,
for defendants-appellees.
DIETZ, Judge.
Plaintiff Jocelyn Kennedy appeals the dismissal of her medical malpractice
claims against Dr. Kelly Prettyman and her employer for failure to comply with Rule
9(j) of the Rules of Civil Procedure. Dr. Prettyman is a general dentist and the
malpractice claims against her relate to the practice of general dentistry. But the
experts Kennedy identified in the Rule 9(j) certification are a periodontist and an oral
surgeon, neither of whom regularly practices in the field of general dentistry.
KENNEDY V. DEANGELO
Opinion of the Court
As explained below, the record supports the trial court’s determination that
Kennedy could not reasonably have expected these experts to testify to the standard
of care applicable to Dr. Prettyman. But, as Dr. Prettyman concedes, the trial court’s
order does not contain the necessary findings of fact required by our precedent.
Accordingly, we vacate the trial court’s order and remand for further proceedings. On
remand, the trial court, in its discretion, may enter a new order based on the existing
record, or may conduct any further proceedings that the court deems necessary for
the just resolution of this matter.
Facts and Procedural History
Dr. Kelly C. Prettyman is a general dentist who works for Dr. Charles Ferzli,
DDS, P.A. d/b/a Smiles of Cary. In August 2013, Jocelyn Kennedy consulted Dr.
Prettyman about a toothache. At the appointment, Kennedy told Dr. Prettyman that
she previously had undergone surgery and radiation treatment for oral cancer. Dr.
Prettyman diagnosed Kennedy with a severe periodontal defect and referred
Kennedy to Dr. Samuel DeAngelo, a periodontist who specialized in treating these
conditions.
Dr. DeAngelo developed a treatment plan for Kennedy that involved extracting
several of her teeth and placing multiple implants. Later, Dr. Prettyman met with
Dr. DeAngelo to review the treatment plan and agreed to order and place a temporary
partial denture for Kennedy after the surgery. This was the full extent of Dr.
-2-
KENNEDY V. DEANGELO
Opinion of the Court
Prettyman’s involvement in the initial treatment planning. Although the proposed
surgery typically poses risks of osteoradionecrosis and other healing issues in
patients with prior oral radiation therapy, Dr. Prettyman did not discuss these risks
with Kennedy or with Dr. DeAngelo.
On 19 September 2013, Dr. DeAngelo extracted eleven of Kennedy’s teeth and
placed seven implants. That same day, Dr. Prettyman delivered and placed a denture
after the surgery was complete.
By early October 2013, Kennedy’s surgical wound on her lower gums opened
up. When Dr. DeAngelo could not close up the wound, he referred Kennedy to an oral
surgeon, Dr. Jeffrey Jelic, who sent her to the Center for Hyperbaric Medicine at
Duke University to receive hyperbaric oxygen treatments. Kennedy’s treating
physicians at Duke diagnosed her with osteoradionecrosis. Today, Kennedy continues
to suffer severe post-surgical complications, including difficulty speaking and eating,
permanent tooth loss, distortion of her face, and a high pain level.
On 22 July 2016, Kennedy filed a malpractice suit against Dr. Prettyman and
her employer, as well as Dr. DeAngelo and others involved in her treatment. The
complaint alleged that Dr. Prettyman was negligent when she placed the temporary
denture in Kennedy’s mouth, without support, immediately after her teeth were
extracted; failed to discuss the relevant risks with Kennedy beforehand; and failed to
refer Kennedy to another provider with more experience treating patients with a
-3-
KENNEDY V. DEANGELO
Opinion of the Court
history of oral cancer treatment. Kennedy’s complaint also included expert witness
certifications as required by Rule 9(j) of the North Carolina Rules of Civil Procedure.
At the time Kennedy filed her complaint, she designated only two experts: Dr.
Jelic, the oral surgeon who referred her to Duke, and Dr. Jeffery Thomas, her
periodontist. Both experts hold dental licenses and are board-certified in their
respective specialties. During depositions, both experts testified that Dr. Prettyman
had breached the standard of care for general dentists.
Dr. Jelic testified that oral surgeons “do the same thing” general dentists do
but that Dr. Prettyman’s general dentistry practice “is not the same specialty as [his]
practice.” Similarly, Dr. Thomas testified he did not “have the exact same practice”
as Dr. Prettyman, explaining he “did procedures that the general dentist would do”
but that he “wasn’t doing general dentistry.” Both experts testified they did not hold
themselves out as general dentists.
Both experts also testified to having some experience working with dentures.
Dr. Jelic explained that his practice prohibits him from actually making dentures—
a task he defers to general dentists—but he does “deliver them all the time.” He also
replied affirmatively when asked whether he ever modified dentures, saying it is
“part of what oral surgeons do. . . . You realign them. You take away pressure sores.
That’s very common.” Dr. Thomas testified that he fabricates temporary dentures and
that he did so multiple times in the year preceding Kennedy’s surgery. When asked
-4-
KENNEDY V. DEANGELO
Opinion of the Court
about delivering and placing temporary dentures, Dr. Thomas testified that his role
ran the “gamut from doing it independently completely myself, attaching it to
temporary implants, to having the general dentist come in there and just watch me,
to having a general dentist come in, deliver, and adjust the bite, and then I check it.”
Following a mediated settlement, Kennedy voluntarily dismissed with
prejudice her claims against all defendants except Dr. Prettyman and her employer.
On 10 January 2018, Dr. Prettyman and her employer moved to dismiss under Rule
9(j) and moved for summary judgment. Following a hearing, the trial court entered
an order granting Defendants’ motion to dismiss and declining to hear the motion for
summary judgment as moot. Kennedy timely appealed.
Analysis
Kennedy challenges the trial court’s dismissal of her claims against Dr.
Prettyman and her employer for failure to comply with Rule 9(j) of the Rules of Civil
Procedure. Whether a litigant satisfied Rule 9(j) in a medical malpractice action is a
question of law that this Court reviews de novo. Braden v. Lowe, 223 N.C. App. 213,
217, 734 S.E.2d 591, 595 (2012).
Rule 9(j) is a special pleading requirement for medical malpractice actions. The
rule “serves as a gatekeeper, enacted by the legislature, to prevent frivolous
malpractice claims by requiring expert review before filing of the action.” Estate of
Wooden ex rel. Jones v. Hillcrest Convalescent Ctr., Inc., 222 N.C. App. 396, 401, 731
-5-
KENNEDY V. DEANGELO
Opinion of the Court
S.E.2d 500, 504 (2012). The relevant provision for our analysis is Rule 9(j)(1), which
requires the complaint to specifically assert “that the medical care . . . ha[s] 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. Gen. Stat. § 1A-1, Rule
9(j)(1).
Even if a complaint facially complies with the requirements of Rule 9(j), the
trial court may dismiss it “if subsequent discovery establishes that the certification
is not supported by the facts, at least to the extent that the exercise of reasonable
diligence would have led the party to the understanding that its expectation was
unreasonable.” Estate of Wooden, 222 N.C. App. at 403, 731 S.E.2d at 506.
But, importantly, if the trial court determines that a complaint is subject to
dismissal on this ground, “the court must make written findings of fact to allow a
reviewing appellate court to determine whether those findings are supported by
competent evidence, whether the conclusions of law are supported by those findings,
and, in turn, whether those conclusions support the trial court’s ultimate
determination.” Id.
With this standard in mind, we turn to the trial court’s order in this case. The
critical facts relevant to this Court’s review are not disputed by the parties: Dr.
Prettyman is a general dentist. The health care treatment Dr. Prettyman provided to
-6-
KENNEDY V. DEANGELO
Opinion of the Court
Kennedy was consistent with the care provided by a general dentist—Dr. Prettyman
saw Kennedy for severe tooth pain; referred Kennedy to a periodontist; and, after the
periodontist extracted a number of Kennedy’s teeth, placed a temporary denture to
replace the extracted teeth.
The two experts on which Kennedy relied in the Rule 9(j) certification are not
general dentists. Dr. Jelic is an oral surgeon. Dr. Jelic does not practice general
dentistry and testified that, as an oral surgeon, he does not practice the “same
specialty” as Dr. Prettyman. Similarly, Dr. Thomas is a periodontist, a health care
professional who treats diseases of the gums and other structures supporting the
teeth. He does not practice general dentistry and likewise testified that, as a
periodontist, he does not have the “same practice” as Dr. Prettyman.
The parties also concede that this case is governed by Rule 702(b) of the Rules
of Evidence, which addresses expert testimony against a “specialist.” N.C. Gen. Stat.
§ 8C-1, Rule 702(b). Although there are separate evidentiary standards in Rule 702(c)
for expert testimony against a “general practitioner,” and a general dentist like Dr.
Prettyman certainly could be thought of as a “general practitioner” in the ordinary
sense, this Court has interpreted that term to apply only “to physicians” and not to
those practicing in the fields of “dentistry, pharmacy, optometry, chiropractic, and
nursing.” FormyDuval v. Bunn, 138 N.C. App. 381, 387, 530 S.E.2d 96, 100 (2000).
-7-
KENNEDY V. DEANGELO
Opinion of the Court
We thus examine the standard for expert testimony against a specialist in Rule
702(b). The relevant portion of the rule states that experts can testify about the
applicable standard of care for a specialist only if the experts “[s]pecialize in the same
specialty” or “[s]pecialize in a similar specialty which includes within its specialty the
performance of the procedure that is the subject of the complaint and have prior
experience treating similar patients.” N.C. Gen. Stat. § 8C-1, Rule 702(b)(1).
Kennedy first asserts that “[d]entistry is its own specialty, and therefore Dr.
Jelic and Dr. Thomas, both of whom practice within the specialty of ‘dentistry’ and
were licensed dentists at the time of the initial pleading in this case, qualify as
experts against Dr. Prettyman.” This argument is squarely precluded by our
precedent. See Roush v. Kennon, 188 N.C. App. 570, 574–76, 656 S.E.2d 603, 606–07
(2008). In Roush, this Court held that a general dentist practices a different specialty
than an oral surgeon. Id. Under Roush, Dr. Prettyman, a general dentist, Dr. Thomas,
a periodontist, and Dr. Jelic, an oral surgeon, all practice in separate, distinct
specialties.
Kennedy next argues that, even if the two experts were not specialists in
general dentistry, they can testify to the standard of care for a general dentist because
Kennedy established that these experts specialize in a similar specialty; perform the
same procedures that Dr. Prettyman performed in this case; and have prior
experience treating similar patients. See N.C. Gen. Stat. § 8C-1, Rule 702(b)(1)(b).
-8-
KENNEDY V. DEANGELO
Opinion of the Court
Here, Kennedy relies heavily on Roush, where this Court permitted a general dentist
to testify to the standard of care for an oral surgeon. But in this argument, Kennedy
downplays the key holding from Roush: although the expert in that case was a general
dentist, he “possessed significant experience in the field of oral surgery.” 188 N.C.
App. at 575, 656 S.E.2d at 607. Indeed, the expert chose to make oral surgery a large
part of his practice, although many general dentists do not. As the Court observed,
“there is a clear difference between a general dentist, and one who chooses to also
practice oral surgery.” Id. at 576, 656 S.E.2d at 607.
The experts in this case appear readily distinguishable from the expert in
Roush. There is no evidence in the record that either Dr. Thomas or Dr. Jelic chose
to also practice general dentistry as well as their primary specialty. To the contrary,
their deposition testimony and other evidence indicates that these experts did the
opposite; they eschewed general dentistry and instead focus their skills on a separate
specialized field, either periodontics or oral surgery. Moreover, the record before this
Court indicates that, in these separate specialties, these experts treat patients in a
different context than a general dentist—focusing on patients with particular
conditions that fit their specializations. This raises legitimate concerns that the
standard of care these experts apply in their more specialized practices would differ
from the standard applicable to a general dentist who sees patients with a broad
range of conditions.
-9-
KENNEDY V. DEANGELO
Opinion of the Court
As a result, we are persuaded that, on this record, the trial court could have
made findings that would have supported a determination that these experts did not
qualify to testify to the standard of care applicable to a general dentist. But, as Dr.
Prettyman concedes, the trial court did not make the findings required by our
precedent, and that, in turn, prevents this Court from engaging in meaningful
appellate review of the trial court’s determination. Estate of Wooden, 222 N.C. App.
at 403, 731 S.E.2d at 506. Dr. Prettyman asserts that this Court should “remand the
case to the trial court to have the trial court revise the Order to include findings of
fact.”
We agree that the appropriate disposition of this case is to vacate the trial
court’s order and remand. On remand, the trial court, in its discretion, may enter a
new order based on the existing record, or may conduct any further proceedings that
the court deems necessary for the just resolution of this matter.
Conclusion
We vacate and remand the trial court’s order for further proceedings consistent
with this opinion.
VACATED AND REMANDED.
Judges STROUD and MURPHY concur.
- 10 -