Ratledge v. Perdue

773 S.E.2d 315, 239 N.C. App. 377, 2015 WL 680328, 2015 N.C. App. LEXIS 91
CourtCourt of Appeals of North Carolina
DecidedFebruary 17, 2015
DocketNo. COA14–500.
StatusPublished
Cited by3 cases

This text of 773 S.E.2d 315 (Ratledge v. Perdue) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ratledge v. Perdue, 773 S.E.2d 315, 239 N.C. App. 377, 2015 WL 680328, 2015 N.C. App. LEXIS 91 (N.C. Ct. App. 2015).

Opinion

CALABRIA, Judge.

*377Jonathan Ratledge ("plaintiff") appeals from the trial court's order dismissing his medical malpractice complaint against Phillip S. Perdue, Jr., M.D. ("Dr. Perdue") and Orthopaedics East and Sports Medicine Center, Inc. (collectively "defendants") for failure to comply with N.C. Gen.Stat. § 1A-1, Rule 9(j) (2013) (" Rule 9(j)"). We affirm.

On 15 August 2008, plaintiff, a baseball player at East Carolina University, visited Dr. Perdue to seek treatment for pain in his left hand.

*378Dr. Perdue determined that plaintiff had a fractured hamate hook, which would require surgery to repair. Dr. Perdue performed the surgery on 29 August 2008. During the procedure, Dr. Perdue severed plaintiff's ulnar nerve.

After the operation, Dr. Perdue continued to see plaintiff in order to monitor his progress. Plaintiff complained of ulnar pain and had difficulty moving portions of his hand. Dr. Perdue advised plaintiff that these complications from surgery could take 9-12 months to completely resolve. Plaintiff's last appointment with Dr. Perdue occurred on 19 March 2009.

On 29 May 2009, plaintiff visited Glen Gaston, M.D. ("Dr. Gaston") to seek a second opinion on his symptoms. Dr. Gaston determined that plaintiff's ulnar nerve had been severed and attempted to correct it via surgery. Dr. Gaston performed multiple procedures, but was ultimately unable to reattach the nerve and return functionality to plaintiff's hand.

Plaintiff retained the services of an attorney, who sent plaintiff's medical records to the CorVel Corporation ("CorVel"), a company which performs reviews of potential medical malpractice claims and provides referrals to expert witnesses. The claim was reviewed by Robert Pennington, M.D. ("Dr. Pennington"). CorVel provided plaintiff's counsel with a "Peer Review by a North Carolina Licensed Board Certified Orthopedic Surgeon" which purported to be Dr. Pennington's review of the case.

Based upon Dr. Pennington's review, plaintiff initiated a medical malpractice action against Dr. Perdue in Pitt County Superior Court on 16 March 2012. After receiving the complaint, defendants' counsel sent interrogatories to plaintiff's counsel seeking to discover the basis for plaintiff's Rule 9(j) certification. In response, plaintiff sent unverified answers to the interrogatories. Defendants then filed a motion to compel verified answers as required by Rule 9(j). On 20 December 2012, the trial court entered a consent order whereby plaintiff would provide verified responses to the interrogatories within 15 days of the entry of the order. Plaintiff failed to comply with the consent order. As a result, defendants filed a motion to dismiss on 8 February 2013. On 14 March 2013, plaintiff filed a voluntary dismissal without prejudice. On 30 September 2013, plaintiff refiled his complaint, including the same allegations of medical malpractice from the original complaint.

On 23 October 2013, defendants filed a motion to dismiss on the basis that plaintiff had not fully complied with Rule 9(j) before the *379expiration of the statute of limitations. After a hearing, the trial court granted the motion on 19 December 2013. Plaintiff appeals.

Plaintiff's sole argument on appeal is that the trial court erred by dismissing his complaint for failure to satisfy the requirements of Rule 9(j). We disagree.

Rule 9(j) states, in relevant part:

*317Any 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 and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have 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[.]

N.C. Gen.Stat. § 1A-1, Rule 9(j) (2013). Moreover, "it is also now well established that even when a complaint facially complies with Rule 9(j) by including a statement pursuant to Rule 9(j), if discovery subsequently establishes that the statement is not supported by the facts, then dismissal is likewise appropriate." Ford v. McCain, 192 N.C.App. 667, 672, 666 S.E.2d 153, 157 (2008).

When ruling upon a motion to dismiss for failure to comply with Rule 9(j), "a court must consider the facts relevant to Rule 9(j) and apply the law to them. Thus, a plaintiff's compliance with Rule 9(j) requirements clearly presents a question of law to be decided by a court, not a jury. A question of law is reviewable by this Court de novo. " Phillips v. Triangle Women's Health Clinic, Inc., 155 N.C.App. 372, 376, 573 S.E.2d 600, 603 (2002) (citations omitted), aff'd per curiam, 357 N.C. 576, 597 S.E.2d 669 (2003).

When a trial court determines a Rule 9(j) certification is not supported by the facts, "the court must make written findings of fact to allow a reviewing appellate court to determine whether those findings are supported by competent evidence, whether the conclusions of law are supported by those findings, and, in turn, whether those conclusions support the trial court's ultimate determination."

*380Estate of Wooden v. Hillcrest Convalescent Ctr., Inc., 222 N.C.App. 396, 403-04, 731 S.E.2d 500, 506 (2012) (quoting Moore v. Proper, 366 N.C. 25, 32, 726 S.E.2d 812, 818 (2012) ).

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Bluebook (online)
773 S.E.2d 315, 239 N.C. App. 377, 2015 WL 680328, 2015 N.C. App. LEXIS 91, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ratledge-v-perdue-ncctapp-2015.