Brown v. Kindred Nursing Centers East, LLC

692 S.E.2d 87, 364 N.C. 76, 2010 N.C. LEXIS 348
CourtSupreme Court of North Carolina
DecidedApril 15, 2010
Docket227A09
StatusPublished
Cited by20 cases

This text of 692 S.E.2d 87 (Brown v. Kindred Nursing Centers East, LLC) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Kindred Nursing Centers East, LLC, 692 S.E.2d 87, 364 N.C. 76, 2010 N.C. LEXIS 348 (N.C. 2010).

Opinions

BRADY, Justice.

This case presents the question whether a complaint alleging medical malpractice may be amended after the expiration of the two-year statute of limitations to include an expert certification as required by North Carolina Rule of Civil Procedure 9(j) (Rule 9(j)). We have previously held that “[a]llowing a plaintiff to file a medical malpractice complaint and to then wait until after the filing to have the allegations reviewed by an expert would pervert the purpose of Rule 9(j).” Thigpen v. Ngo, 355 N.C. 198, 204, 558 S.E.2d 162, 166-67 (2002). Because our decision in Thigpen controls this case, we reverse the decision of the Court of Appeals.

FACTUAL AND PROCEDURAL BACKGROUND

On 29 March 2006, nearly two years after his father passed away on 3 April 2004, plaintiff Lenton Brown commenced a pro se civil [78]*78action as administrator of his father’s estate. In the complaint plaintiff alleged negligence, wrongful death, and medical malpractice against the following parties: Guardian Care of Ahoskie; Steve Jones, as Administrator of Guardian Care of Ahoskie; Kindred Hospitals East, L.L.C.; Kindred Nursing Centers East, L.L.C.; Ventas, Inc.; and Dr. Steven Ferguson.

Though plaintiff’s complaint alleged medical malpractice, it failed to comply with the special pleading requirements of Rule 9(j). Under Rule 9(j), a pleading alleging medical malpractice “shall be dismissed” unless it “specifically asserts that the 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.” N.C.G.S. § 1A-1, Rule 9(j) (2009). Two days after filing the complaint, plaintiff filed a “Motion for 9 J Extension,” requesting a “120 day extension on filing a 9 J statement.” Plaintiff based this motion on the provision in Rule 9(j) granting trial courts the discretion to extend the statute of limitations for a 120-day period to allow a plaintiff to file a medical malpractice complaint. On 2 June 2006, the trial court granted plaintiff’s motion for a 120-day extension and made it retroactive to 29 March 2006.

Thereafter, on 11 July 2006, plaintiff filed an amended complaint, through counsel, naming the following parties as defendants: Kindred Nursing Centers East, L.L.C.; Kindred Healthcare Operating, Inc.; Kindred Healthcare, Inc.; Patricia Evelyn Dix, N.P.; Steven Ferguson, M.D.; and Eastern Carolina Family Practice, P.A. On 9 November 2006, the trial court dismissed with prejudice plaintiff’s claims against defendants Kindred Nursing Centers East, L.L.C., Kindred Healthcare Operating, Inc., and Kindred Healthcare, Inc. The remaining defendants, Patricia Evelyn Dix, Steven Ferguson, and Eastern Carolina Family Practice, filed a motion on 18 September 2007 to dismiss the complaint for, among other things, failure to comply with the special pleading requirements of Rule 90)- On 7 March 2008, the trial court allowed defendants’ motion and dismissed plaintiff’s complaint with prejudice. Plaintiff appealed to the Court of Appeals.

On 5 May 2009, a divided panel of the Court of Appeals reversed the trial court’s order dismissing plaintiff’s complaint. Brown v. Kindred Nursing Ctrs. E., L.L.C., 196 N.C. App. —, 675 S.E.2d 687 (2009). The Court of Appeals concluded that plaintiff corrected his defective complaint by filing an amended complaint with the requi[79]*79site expert certification during the 120-day extension granted by the trial court. Id. at -, 675 S.E.2d at 691. The dissenting judge argued that the trial court properly dismissed plaintiffs complaint since the medical care at issue had not been reviewed by an expert before plaintiff filed his original complaint. Id. at-, 675 S.E.2d at 692-93 (Elmore, J., dissenting). Defendants now appeal to this Court as of right based on the dissenting opinion at the Court of Appeals. This Court also allowed defendants’ petition for discretionary review as to additional issues on 27 August 2009.

ANALYSTS

The statute of limitations for “[a]ctions for damages on account of the death of a person caused by the wrongful act, neglect or fault of another” is two years from the date of death. N.C.G.S. § 1-53(4) (2009). Because plaintiff’s father died on 3 April 2004, the statute of limitations, absent a valid extension, expired on 3 April 2006. In granting plaintiff’s “Motion for 9 J Extension,” the trial court attempted to extend the statute of limitations 120 days from 29 March 2006, the date on which plaintiff filed his original complaint. Thus, the question presented by this case is whether the trial court issued a valid extension of the statute of limitations under Rule 9(j).

The leading case addressing amended complaints and the statute of limitations under Rule 9(j) is Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162. In Thigpen, the plaintiff filed a complaint lacking an expert certification during a 120-day extension of the statute of limitations. Id. at 199-200, 558 S.E.2d at 164. After the 120-day extension expired, the plaintiff filed an amended complaint that included an expert certification. Id. at 200, 558 S.E.2d at 164. This Court held that the trial court properly dismissed the plaintiff’s complaint for two reasons: (1) “[0]nce a party receives and exhausts the 120-day extension of time in order to comply with Rule 9(j)’s expert certification requirement, the party cannot amend a medical malpractice complaint to include expert certification”; and (2) “Rule 9(j) expert review must take place before the filing of the complaint.” Id. at 205, 558 S.E.2d at 167.

Though similar in many respects, there are slight variations in the procedural posture underlying Thigpen and the present case. In Thigpen the plaintiff filed a motion for a 120-day extension of the statute of limitations before filing an initial complaint. Furthermore, the plaintiff in Thigpen did not file a certified complaint until after the 120-day extension had expired. Despite these procedural differ[80]*80enees, both cases challenge the extent to which Rule 9(j) allows a party to amend a deficient medical malpractice complaint.

To resolve this question in the medical malpractice context, the specific policy objectives embodied in Rule 9(j) must be considered. As we explained in Thigpen, “[t]he legislature’s intent was to provide a more specialized and stringent procedure for plaintiffs in medical malpractice claims through Rule 9(j)’s requirement of expert certification prior to the filing of a complaint.” Id. at 203-04, 558 S.E.2d at 166. To lessen the additional burden of this special procedure, the legislature permitted trial courts to extend the statute of limitations “for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule.” N.C.G.S. § 1A-1, Rule 9Q). This Court’s holding in Thigpen maintained the balance struck by the legislature between ensuring access to the courts for resolution of medical malpractice claims and protecting health care providers from potentially frivolous suits.

With this legislative background in mind, we now turn to an analysis of the present case.

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Brown v. Kindred Nursing Centers East, LLC
692 S.E.2d 87 (Supreme Court of North Carolina, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
692 S.E.2d 87, 364 N.C. 76, 2010 N.C. LEXIS 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-kindred-nursing-centers-east-llc-nc-2010.