Tort/Negligence – Medical Malpractice – Civil Practice – Rule 9(j) – Dismissal Without Prejudice – Re-Filing

McKoy v. Beasley (Lawyers Weekly No. 11-07-0673, 14 pp.) (Sanford L. Steelman Jr., J.) Appealed from Bladen County Superior Court. (W. Russell Duke Jr. & Douglas B. Sasser, JJ.) N.C. App. Click here for the full-text opinion.

Holding: Where plaintiff’s original complaint failed to comply with N.C. R. Civ. P. 9(j), Rule 9(j) was not satisfied when the original complaint was dismissed without prejudice and plaintiff re-filed within one year – but outside the statute of limitations – with Rule 9(j) allegations in her re-filed complaint.

We affirm the trial court’s order granting defendants’ motion to dismiss.

“Permitting 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.” Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002). “An amended complaint filed after the expiration of the statute of limitations cannot cure the omission if it does not specifically allege that the expert review occurred prior to the expiration of the statute of limitations.” Ford v. McCain, 192 N.C. App. 667, 666 S.E.2d 153.

The statute of limitations for a wrongful death claim is two years from the date of death. G.S. ¤ 1-53(4). Plaintiff’s decedent died on April 30, 2005. The re-filed complaint was filed on Dec. 20, 2007, more than two years following April 30, 2005. As a result, plaintiff must rely upon the complaint filed in the previous action, which was dismissed without prejudice, in order to have timely filed her action for wrongful death.
We have examined the complaint filed on April 7, 2007. It is totally devoid of any allegations that indicate compliance with Rule 9(j). Since the original complaint — that was filed within the two year limitations period — was defective, the subsequent complaint must be dismissed.

Under Bass v. Durham County Hospital Corp., 158 N.C. App. 217, 580 S.E.2d 738 (2003), rev’d per curiam for reasons stated in the dissent, 358 N.C. 144, 592 S.E.2d 687 (2004), the defective original complaint cannot be rectified by a dismissal followed by a new complaint complying with Rule 9(j), where the second complaint is filed outside of the applicable statute of limitations.

Since plaintiff failed to challenge the constitutionality of Rule 9(j) in her pleadings and failed to adequately develop that argument before the trial court, we do not address her contention that Rule 9(j) is unconstitutional.

Affirmed.