AUDREY E. ALLEN, Administratrix of the Estate of NATT ALBERT ALLEN,
Sr.,
Plaintiff
v .
CAROLINA
PERMANENTE MEDICAL GROUP, P.A., a/k/a Kaiser Permanente and DAN FRANKLIN
BURROUGHS,
M.D.,
Defendants
Perry & Brown, by Sally Metz Keith, for
plaintiff-appellant.
Moore & Van
Allen, P.L.L.C., by Loni S. Caudill, for defendant-appellees.
HUNTER,
Judge.
Plaintiff-appellant Audrey E. Allen,
administratrix of the estate of Natt Albert Allen, Sr. (“plaintiff”), appeals
the trial court's order dismissing her action with prejudice on the basis that
she failed to comply with Rule 9(j) of the N.C. Rules of Civil Procedure by
tendering a witness she could not have reasonably expected to qualify as an
expert witness under Rule 702 of the N.C. Rules of Evidence. We agree and thus,
affirm the trial court's order.
Facts pertinent to
this case are that plaintiff's husband, Natt Albert Allen, Sr. (“Mr. Allen”)
experienced chest pain in three different episodes on 1 July 1996. At some time
during or just following his third bout of pain, Mr. Allen took two
nitroglycerin
tablets. After thirty minutes, having obtained no relief, Mr. Allen arrived at
Kaiser Permanente's urgent care clinic, sweating and complaining of chest pain
and shortness of breath. The treating physician on duty at the time, defendant-
appellee Dan Franklin Burroughs, M.D. (“Dr. Burroughs”), worked for
defendant-appellee Carolina Permanente Medical Group (collectively with Dr.
Burroughs, “defendants”), and was board certified in family practice medicine.
Dr. Burroughs examined Mr. Allen, during which time Mr. Allen advised: that he
had a history of coronary artery disease, that he had had a cardiac
catherization approximately five years before, that he smoked and drank alcohol,
and that he had experienced the three pain attacks while on his job “pulling
carpet.” Dr. Burroughs then administered an EKG to him which results were
normal, prescribed medication for Mr. Allen and referred him to a cardiologist.
Dr. Burroughs further recorded in Mr. Allen's medical record that at the time of
the examination, Mr. Allen was pain-free. Mr. Allen died the next
morning.
On 5 June 1998, plaintiff filed her
complaint alleging that Mr. Allen's death
was the foreseeable result of
the negligent acts and omissions of Defendants Kaiser and
Burroughs.
[She further
alleged that] [i]n the diagnosis, care and treatment, or lack thereof . . .
Defendant Burroughs . . . negligently violated the accepted standard of medical
care among members of the same healthcare profession with similar training and
experience situated in the same or similar communities . . . in failing to
comply with the standards of care of the[] profession; in failing to apply
[his]knowledge with reasonable diligence; and in failing to use [his] best
judgment . . . .
Furthermore as procedurally required under N.C. Gen.
Stat. § 1A-1, Rule 9(j), plaintiff specifically pled that Dr. Burrough's medical
care of Mr. Allen had been reviewed by general surgeon Dr. B. Michael Smith
(“Dr. Smith”), “a person who is reasonably expected to qualify as an expert
witness under Rule 702 . . . a person who is willing to testify that said
medical care did not comply with the applicable standard of care.”
Plaintiff has preserved three assignments of error:
(1) that the trial court improperly allowed defendants' motion to dismiss under
Rules 12(b)(6) and 9(j) of the North Carolina Rules of Civil Procedure and Rule
702 of the North Carolina Rules of Evidence; (2) that the trial court improperly
dismissed her complaint under Rule 56 of North Carolina Rules of Civil
Procedure; and (3) that the trial court improperly dismissed her complaint
pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure for
failure to comply with Rule 9(j) and Rule 702. Due to our disposition of this
case, we only address plaintiff's last argument.
We
begin by noting that our Legislature has taken considerable pains to effect a
statute that allows meritorious medical malpractice claims to go forward, while
shutting down the engine of frivolous or malicious medical malpractice claims.
Our statutes require
that:
Any complaint alleging
medical malpractice by a health care provider . . . in failing to comply with
the applicable standard of care . . . shall be dismissed
UNLESS:
(1) 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
[Evidence] Rule 702 . . . and who is willing to testify that the medical care
did not comply with the applicable standard of
care;
(2) 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 [Evidence] Rule 702(e) . . . 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
(3) The
pleading alleges facts establishing negligence under the existing common-law
doctrine of res ipsa loquitur.
N.C. Gen. Stat. § 1A-1, Rule 9(j) (1999)
(emphasis
added).
Furthermore,
(a) If
scientific, technical or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an
opinion.
(b)
In a medical malpractice action . . . a person
shall not give expert testimony on the appropriate standard of health
care . . . UNLESS the person is a licensed health care provider
in this State or another state and meets the following
criteria:
(1) If
the party against whom or on whose behalf the testimony is offered is a
specialist, the expert witness
must:
a. Specialize
in the same specialty as the party against whom or on whose behalf the testimony
is offered;
or
b. Specialize
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.
(2) During
the year immediately preceding the date of the occurrence that is the basis for
the action, the expert witness must have devoted a majority of his or her
professional time to either or both of the
following:
a. The
active clinical practice of the same health profession in which the party
against whom or on whose behalf the testimony is offered, and if that party is a
specialist, the active clinical practice of the same specialty or 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; or
b. The
instruction of students in an accredited health
professional school or accredited residency or clinical research program in the
same health profession in which the party against whom or on whose behalf the
testimony is offered, and if that party is a specialist, an accredited health
professional school or accredited residency or clinical research program in the
same
specialty.
(c) Notwithstanding
subsection (b) of this section, if the party against whom or on whose behalf the
testimony is offered is a general practitioner, the expert witness, during the
year immediately preceding the date of the occurrence that is the basis for
theaction, must have devoted a majority of his or her professional time to
either or both of the
following:
(1) Active
clinical practice as a general practitioner;
or
(2) Instruction
of students in an accredited health professional school or accredited residency
for clinical research program in the general practice of medicine.
N.C.R.
Evid. 702(a), (b), (c) (emphasis added).
The
plaintiff in Keith v. Northern Hosp. Dist. of Surry County, 129 N.C. App.
402, 499 S.E.2d 200 (1998) raised an issue similar to the present plaintiff
before this Court. There, the plaintiff alleged medical malpractice in her
complaint, but failed to include the required Rule 9(j) certification. Upon
defendant's motion to dismiss under Rule 9(j), plaintiff motioned the court to
allow her to amend her pleading to include the required certification. The trial
court denied plaintiff's motion to amend and allowed defendant's motion to
dismiss with prejudice. Upon this Court's review, Judge Edward Greene opined for
the Court:
This rule [ N.C.
Gen. Stat. § 1A-1, Rule 9(j)] is unambiguous in stating that the complaint
“shall be dismissed” if the complaint does not include a certification that
the medical care at issue has been reviewed by a person “reasonably expected to
qualify as an expert” and “who is willing to testify that the medical care
[which is the subject of the pleading] did not comply with the applicable
standard of care.” When the statutory language is “clear and unambiguous, 'there
is no room for judicial construction,' and the statute must be given effect in
accordance with its plain and definite meaning.” Avco Financial Services v.
Isbell, 67 N.C. App. 341, 343, 312 S.E.2d 707, 708 (1984) (quoting
Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854 (1980)).
It follows,therefore, that because the complaint in this case alleged a claim
for medical malpractice against a “health care provider” and did not
include the necessary Rule 9(j) certification, the trial court was
required to dismiss it.
Id. at 404-05, 499 S.E.2d at 202
(emphasis added) (footnotes omitted). We are persuaded that Keith
controls in the present case. Plaintiff here, unlike Keith's plaintiff,
did assert the proper language of Rule 9(j), stating that she had
acquired a physician (Dr. Smith) to testify. However, we are unconvinced that
she could have “reasonably expected [Dr. Smith] to qualify as an expert witness
under Rule 702 of the Rules of Evidence . . . .” N.C. Gen. Stat. § 1A-1, Rule
9(j)(1). Neither are we persuaded plaintiff could have reasonably believed that,
even if Dr. Smith had been allowed to testify, his testimony would have been
credible in assisting a jury's understanding as to whether Dr. Burrough's
medical care complied with the applicable standard of care. See also N.C.
Gen. Stat. § 8C-702(a).
We reiterate that statutory
law clearly states that where the party against whom expert testimony is offered
is a specialist, the expert witness MUST
also
a. Specialize
in the same specialty . . . ;
or
b. Specialize
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.
(2) During
the year immediately preceding the date of the occurrence . . . have devoted a
majority of hisor her professional time to either or both of the
following:
a. The
active clinical practice [in that specialty] . . . ;
or
b. The
instruction of students [in that specialty] . . . .
N.C. Gen. Stat. § 8C,
Rule 702(b)(1), (2) (1999). Furthermore, the statute is even more stringent
where the expert testimony is offered against a “general practitioner.” In such
cases, during the immediately preceding year the expert
witness must have devoted a
majority of his or her professional time to either or both of the
following:
(1) Active
clinical practice as a general practitioner;
or
(2) Instruction
of students . . . in the general practice of medicine.
N.C. Gen. Stat. §
8C, Rule 702(c)(1), (2) (1999) (emphasis added). Thus, in order for Dr. Smith to
qualify -- or for plaintiff to reasonably believe that he would qualify as an
expert witness in this case, he would necessarily have to have been in the same
or similar practice as Dr. Burroughs and have been spending most of his time
either seeing patients in that specialty and/or teaching in an accredited health
professional school or residency or research program in the same or a similar
specialty. We hold that Dr. Smith did not and could not qualify as an expert
witness against Dr. Burroughs in this case because family practice is not within
the specialty of general surgery.
In order to become
licensed in the State of North Carolina, a physician must have at least one year
of post graduate trainingbeyond medical school. However, that year's training
need not be specialized. Nevertheless, in order to be certified in family
practice, a physician must have completed the specialized residency training for
family practitioners -- which usually is a three-year post graduate residency.
Additionally, physicians in North Carolina must be periodically re-certified,
which requires completion of a minimum of 150 hours of continuing medical
education every three years.
From the record, it is
undisputed that Dr. Burroughs was North Carolina Board certified as a family
practitioner and that he had practiced as such for 35 years -- including the
year prior to and for two years following the incident in question. It is
further uncontested that Dr. Smith, plaintiff's proposed expert witness, was a
Board certified general surgeon who, for the year prior to the incident in
question (which occurred in June 1996) solely practiced in his area of general
surgery. We begin by noting that plaintiff does not -- and reasonably so --
contend that these two areas of medicine are the same. Instead, plaintiff
attempts to argue that family practice and general surgery are “similar
specialties” within the meaning of North Carolina Rule of Evidence 702. We are
unconvinced.
It is plaintiff's contention that
regardless of the fact Dr. Burroughs was certified in family practice, because
he was working in an Urgent Care facility, he was actually practicing as either
a general practitioner or an emergency medicine doctor. Thus, plaintiff argues,
Dr. Smith's experience was similar to Dr.Burroughs. However, we do not agree.
Addressing first plaintiff's general practitioner argument, we note that in
order for Dr. Smith to qualify under Rule 702(c), he must have also been a
general practitioner -- the rule leaving no room for any other “similar
specialty.” Never once did Dr. Smith purport to be a general practitioner, and;
although he agreed that he had not met the requirements for board certification
and neither did he complete the training required for a physician to specialize
in family practice, Dr. Smith purported to say that he felt qualified to testify
on the standard of care for a family physician. Yet in his own deposition, the
only practice Dr. Smith admits to having is one of general surgery. He further
admits that he has neither met the requirements for nor does he have any
expertise in family practice medicine except “[t]o the extent that it's involved
in emergency medicine somewhat . . . .”
Furthermore,
although Dr. Smith attempts to claim expertise in emergency medicine when he
states “I guess you could consider me board eligible in emergency medicine,” he
later admits that he has another three (out of five) years to practice emergency
medicine before he can even take the Board exam for that specialty. We further
note that Dr. Smith had been in emergency room practice only twice in his
career, from January 1993 to May or June 1993, and then again in February 1997
until his deposition. Additionally, Dr. Smith admits and plaintiff does not
dispute that the only teaching he has done is in training paramedics in an
unaccredited school setting -- again, this fails to meet therequirements under
Rule 702. Thus, the record reveals that Dr. Smith's only feasible expert
testimony would have to come from his own specialty as a general
surgeon.
We find Dr. Smith's own testimony
dispositive as to whether he had the expertise to argue the standard of care
applicable to Dr. Burroughs. In his deposition Dr. Smith testified that “[b]ased
on what the record says, I think there's a likelihood [Mr. Allen] should have
been admitted” to the hospital. However, when questioned as to the care Mr.
Allen should have received, Dr. Smith did not
know:
Q: If
[Mr. Allen] had been admitted to the hospital, what would have
happened?
A: I
don't
know.
Q: You
wouldn't have made those treatment
decisions?
A: No,
ma'am.
Q: So
you don't know how he would have been
treated?
A: I
mean, I have an opinion as to how he possibly could have been treated, but as
far as the way he should have been, again it falls in the expertise out of my
field. I know how most patients like this are treated in the general area
where I practice.
(Emphasis added.)
Considering Dr. Smith's deposition alone, it is
clear that as an “expert” offering testimony against Dr. Burroughs, Dr. Smith
did not meet the requirement that he “[s]pecialize in the same specialty as [Dr.
Burroughs]” nor did he “[s]pecialize in a similar specialty which include[d]
within it[] . . . the procedurethat is the subject of the complaint,” as
required by Rule 702. N.C. Gen. Stat. § 8C, Rule 702(b)(1). Therefore, we hold
that plaintiff could not have reasonably believed that Dr. Smith would qualify
as an expert witness in this case, thus “the trial court was required to
dismiss” plaintiff's cause of action. Keith, 129 N.C. App. at 405, 499
S.E.2d at 202.
Finally, we address plaintiff's oral
argument before this Court that the trial court was not obligated to dismiss her
cause of action with prejudice, but could have instead dismissed the action
without prejudice under N.C. Gen. Stat. § 1A-1, Rule 41(a).
Recently, in Brisson v. Santoriello, ___ N.C.
___, ___S.E.2d ___ (No. 376PA99 filed 5 May 2000), our Supreme Court addressed
this very issue. The plaintiffs in that case filed their medical malpractice
claim in superior court without the required Rule 9(j) certification. Defendants
moved to dismiss for the lack thereof, and plaintiffs subsequently moved to
amend their pleadings, or in the alternative, to voluntarily dismiss their
complaint without prejudice pursuant to Rule 41(a). The trial court denied
plaintiffs' motion to amend and reserved ruling on defendants' motion to
dismiss. In the meantime, plaintiffs took their voluntary dismissal under Rule
41(a) and later refiled their claim with the appropriate Rule 9(j)
certification. Holding that plaintiffs' voluntary dismissal was proper, the
Court opined: “Had the trial court involuntarily dismissed plaintiffs' complaint
with prejudice pursuant to defendants' motion before plaintiffs had taken
the voluntary dismissal, then plaintiffs' claims set forth inthe second
complaint would be barred . . . . Such was not the case here, however.”
Brisson, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (slip op. 9) (emphasis in
original).
Plaintiff is correct when she says it is
within the trial court's discretion whether to dismiss with or without
prejudice. However, in the present case, plaintiff never moved to amend her
complaint nor did she take a voluntary dismissal pursuant to Rule 41(a). Thus,
the granting of defendants' motion to dismiss with prejudice, under the
provisions of Rule 9(j), serves as res judicata, barring plaintiff from
now arguing that her case should have been dismissed without prejudice to her.
The record before us does not support an argument that the trial court abused
its discretion. Thus, the trial court's judgment
is
Affirmed.
Judges GREENE
and HORTON concur.