Blyther v. N.C. Department of Correction ( 2005 )

*********** The undersigned have reviewed the prior Decision and Order based upon the record of the proceedings before Deputy Commissioner Baddour. The appealing party has not shown good grounds to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Decision and Order. *********** Based upon the evidence of record, the Full Commission makes the following: FINDINGS OF FACT 1. A hearing before the deputy commissioner on defendant's Motion To Dismiss was held on April 2, 2004.

2. Plaintiff alleges a claim for medical negligence in the Tort Claim Affidavit filed with the North Carolina Industrial Commission.

3. Plaintiff's claim fails to assert that his medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness and who is willing to testify that the medical care did not comply with the applicable standard of care.

4. Defendant moved to dismiss plaintiff's claim for failure to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure.

5. At the hearing before the deputy commissioner on defendant's Motion to Dismiss, plaintiff requested an opportunity to produce an affidavit in compliance with Rule 9(j). By the terms of the Interlocutory Decision and Order entered on April 27, 2004, plaintiff was allowed up to and including September 24, 2004 in which to provide an affidavit in compliance with Rule 9(j). The required affidavit has not been submitted within the time ordered.

*********** The foregoing findings of fact engender the following: CONCLUSIONS OF LAW 1. A complaint alleging medical malpractice by a health care provider shall be dismissed unless the pleading complies with the requirements of Rule 9(j) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 9. *********** Based upon the foregoing findings of fact and conclusions of law, the undersigned enters the following: ORDER 1. Plaintiff's claim for medical negligence against defendant is DISMISSED WITH PREJUDICE.

2. No costs are taxed to plaintiff as he was permitted to file this civil action in forma pauperis.

This the 9^th day of August 2005.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/_______________ CHRISTOPHER SCOTT COMMISSIONER