Falton v. N.C. Dept. of Correction

Opinion

The undersigned have reviewed the prior Opinion and Award based upon the record of the proceedings before Deputy Commissioner Berger. Upon reconsideration of the evidence, the Full Commission finds that the appealing party has not shown good grounds to receive further evidence; rehear the parties or their representatives; or amend the Decision and Order.

*********** Based upon all the evidence in this case and the findings of fact found by the Deputy Commissioner, the Full Commission makes the following findings of fact:

FINDINGS OF FACT 1. Plaintiff filed a tort claim based upon the theory of medical malpractice. Plaintiff alleges that defendants staff poisoned him and refused to provide proper medical treatment.

2. Plaintiff failed to assert in his pleading or otherwise demonstrate that the alleged negligent medical care has been reviewed by a person who is reasonably expected to qualify as an expert under Rule 702 of the N.C. Rules of Evidence and that a person qualified as an expert is willing to testify that the medical care did not comply with applicable standards as required by Rule 9(j) of the N.C. Rules of Civil Procedure.

3. Expert testimony is necessary for plaintiff to prevail in this case.

*********** Based upon the findings of fact, the examination of plaintiff at the hearing before the Deputy Commissioner and a review of the pleadings, the Full Commission concludes as follows:

CONCLUSION OF LAW Plaintiff has failed to state a claim pursuant to Rule 9(j) of the N.C. Rules of Civil Procedure due to plaintiffs failure to assert in his pleading or otherwise demonstrate that the alleged negligent medical care has been reviewed by a person who is reasonably expected to qualify as an expert under Rule 702 of the N.C. Rules of Evidence and that a person qualified as an expert is willing to testify that the medical care did not comply with applicable standards. Furthermore, expert medical testimony is necessary in this case. Rule 9(j) of the N.C. Rules of Civil Procedure.

*********** Based upon the foregoing findings of fact and the conclusion of law, the Full Commission enters the following:

ORDER 1. Plaintiffs claims are hereby Dismissed with prejudice.

2. Each party shall bear its own costs.

This the ___ day of March 2001.

S/_______________ DIANNE C. SELLERS COMMISSIONER

CONCURRING:

S/_____________ THOMAS J. BOLCH COMMISSIONER

S/______________ RENE C. RIGGSBEE COMMISSIONER