DocketNumber: I.C. NO. TA-20387 A.G. NO. 07-1259.
Judges: <center> INTERLOCUTORY DECISION AND ORDER for the Full Commission by DIANNE C. SELLERS, Commissioner, N.C. Industrial Commission.</center>
Filed Date: 3/3/2009
Status: Precedential
Modified Date: 7/6/2016
After review of the Motion, IT IS HEREBY ORDERED that plaintiff's Motion is GRANTED. The October 20, 2008 letter by Dr. Parks is admitted into the record as an exhibit.
2. In this State Tort Claims action, plaintiff alleges that employees or agents of defendant committed acts of medical negligence in providing treatment.
3. Defendant filed a Motion to Dismiss for plaintiff's failure to file an affidavit from a doctor or medical expert as required by Rule 9(j) of the North Carolina Rules of Civil Procedure with his Tort Claim Affidavit.
4. An Interlocutory Decision and Order was entered on May 20, 2008, providing plaintiff one hundred twenty (120) days within which to submit to Special Deputy Commissioner Taylor an affidavit, satisfactory to N.C. Rules of Civil Procedure 9(j), signed by a physician that said the physician is prepared to testify that plaintiff's medical treatment in the alleged circumstances fell below the applicable standard of care. The Interlocutory Decision and Order provided that if plaintiff did not provide the required Rule 9(j) affidavit, this civil action would be dismissed.
5. On June 29, 2008, plaintiff submitted a letter from Dr. Norman H. Parks, MD stating that Dr. Parks would be willing to review plaintiff's medical records regarding his *Page 3
medical treatment provided by defendant and would be willing to testify to the quality and standard of care that plaintiff has received. This statement did not meet the requirements of an affidavit pursuant to Rule 9(j) because the physician did not state that medical care provided by defendant failed to meet the applicable standard of care.
6. On June 30, 2008, the Commission received notice from defendant that plaintiff's medical records were submitted directly to Dr. Parks.
7. Dr. Parks submitted another letter dated September 11, 2008 stating his opinion concerning the medical treatment provided by defendant. Dr. Parks strongly urged that defendant provide plaintiff with proper care.
8. On January 12, 2009, plaintiff submitted a third letter from Dr. Parks dated October 30, 2008 wherein Dr. Parks further clarifies that the medical care provided to plaintiff by defendant does not meet the applicable standard of care.
2. Pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure "[a]ny complaint alleging medical malpractice by a health care provider as defined in N.C. Gen. Stat. *Page 4
§
a. The pleading specifically asserts 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;
b. The pleading specifically asserts that the medical care has been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or
c. The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur."
3. Pursuant to N.C. Gen. Stat. §
4. In the case at hand, plaintiff has complied with N.C. Gen. Stat. §
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.
2. This matter is hereby REMANDED to Chief Deputy Commissioner Wanda Blanche Taylor for assignment to a Deputy Commissioner for further proceedings.
This the 24th day of February, 2009.
S/___________________ DIANNE C. SELLERS COMMISSIONER
CONCURRING:
*Page 1S/___________________ BERNADINE S. BALLANCE COMMISSIONER
S/___________________ STACI MEYER COMMISSIONER