Locklear v. Cummings

817 S.E.2d 571, 371 N.C. 354
CourtSupreme Court of North Carolina
DecidedAugust 17, 2018
Docket202A17
StatusPublished
Cited by2 cases

This text of 817 S.E.2d 571 (Locklear v. Cummings) 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
Locklear v. Cummings, 817 S.E.2d 571, 371 N.C. 354 (N.C. 2018).

Opinion

PER CURIAM.

**354 This matter is before the Court based upon a dissent at the Court of Appeals. Locklear v. Cummings , --- N.C. App. ----, 801 S.E.2d 346 (2017). The dissent concluded that plaintiff pled "a claim of medical malpractice by a healthcare provider in her complaint, not a claim of ordinary negligence as asserted by the majority." Id. at ----, 801 S.E.2d at 352 (Berger, J., concurring in part and dissenting in part). We agree that the majority at the Court of Appeals erred when it converted plaintiff's claim of medical malpractice into a claim of ordinary negligence. See Viar v. N.C. Dep't of Transp. , 359 N.C. 400 , 402, 610 S.E.2d 360 , 361 (2005) (per curiam) ("It is not the role of the appellate courts ... to create an appeal for an appellant."). We therefore reverse the decision of the Court of Appeals on that ground and remand this case to that court to address whether the trial court erred in dismissing plaintiff's complaint. See Vaughan v. Mashburn , --- N.C. ----, ----, 817 S.E.2d 370 , 379, 2018 WL 3957114 (Aug. 17, 2018) (42PA17) (concluding "that a plaintiff in a *572 medical malpractice action may file an amended complaint under Rule 15(a)" by leave of **355 court "to cure a defect in a Rule 9(j) certification when the expert review and certification occurred before the filing of the original complaint"); Thigpen v. Ngo , 355 N.C. 198 , 204, 558 S.E.2d 162 , 166 (2002) ("[P]ermitting amendment of a complaint to add the expert certification where the expert review occurred after the suit was filed would conflict directly with the clear intent of the legislature.").

REVERSED AND REMANDED.

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Related

Durity v. Precision Walls, Inc.
E.D. North Carolina, 2020
Locklear v. Cummings
822 S.E.2d 587 (Court of Appeals of North Carolina, 2018)

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Bluebook (online)
817 S.E.2d 571, 371 N.C. 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/locklear-v-cummings-nc-2018.