Keith v. Northern Hospital District

Judge Timmons-Goodson

concurring in the result.

I agree with the majority that the order of the trial court should be affirmed, but for the reasons discussed herein, I cannot agree with the majority’s analysis. Particularly, I take issue with the majority’s determination that Rule 9(j) precludes amendment of a pleading pursuant to Rule 15 as a matter of law. While the majority insists that it does not decide the relationship between Rule 9(j) and Rule 15 in all instances, the majority begins its analysis by stating, “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,” and a reading of the majority’s analysis inherently indicates otherwise.

Rule 15 of our Rules of Civil Procedure permits leave to amend “when justice so requires.” Saintsing v. Taylor, 57 N.C. App. 467, 471, 291 S.E.2d 880, 883, disc. review denied, 306 N.C. 558, 294 S.E.2d 224 (1982). It is well settled that leave to amend should be freely granted, unless some material prejudice is demonstrated. Id. Generally, whether to allow a motion to amend a pleading is addressed to the sound discretion of the trial court and will not be disturbed absent a showing of abuse. Dept. of Transportation v. Bollinger, 121 N.C. App. 606, 609, 468 S.E.2d 796, 797-98 (1996).

Rule 9 of the Rules of Civil Procedure is entitled “Pleading special matters.” Therein, matters which require more than the notice pleading generally accepted in this jurisdiction are listed. See N.C.R. Civ. P. 9. For example, legal capacity of any party that is not a natural person to be sued must be affirmatively plead under subsection (a); fraud, duress, or mistake must be plead with particularity under subsection (b); and a denial that a condition precedent has been performed or occurred must be plead with specificity and particularity under subsection (c). N.C.R. Civ. P. 9(a),(b),(c). Each of these subsections use mandatory language, and it is understood that failure to comply with the pleading requirements of Rule 9 may result in a Rule 12(b)(6) dismissal for failure to state a claim upon which relief may be granted. However, in numerous instances, Rule 15 has acted to save defective Rule 9 pleadings.

We note most pertinently that subsection (j) of Rule 9 requires that a complaint alleging medical malpractice by a health care provider specifically “assert[] 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.R. Civ. P. 9(j)(l). While the majority relies on the language of subsection Q), which provides that a complaint that fails to include such a statement in accordance with 9(j)(l) or (j)(2) “shall be dismissed,” we do not agree with the majority that this language is clear and unambiguous. In fact, while it may be true that the General Assembly did promulgate this Act to avoid the filing of frivolous medical malpractice claims, there is no mention by the General Assembly that the Act precludes amendment under Rule 15 to conform with Rule 9Q) or that Rule 9(j) is otherwise exempt from the operation of other Rules of Civil Procedure. It would constitute a grave injustice to preclude as a matter of law such amendment in light of the lack of any direct evidence that the General Assembly intended by the creation of Rule 9(j) to carve out an exception 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 plaintiffs 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 tfie trial court. Therefore, I respectfully concur in the result of the majority only.