Don't Miss
Home / Uncategorized / MCGUIRE v. RIEDLE,

MCGUIRE v. RIEDLE,

Link to original WordPerfect file
Link to PDF file

How to access the above link?

Return to nccourts.org

Return to the Opinions Page


All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.


NO. COA07-1276

NORTH CAROLINA COURT OF APPEALS

Filed: 3 June 2008

MICHAEL H. McGUIRE,

Plaintiff,

v
.
Gaston County


No. 06 CVS 1126
DR. ROBERT R. RIEDLE and
GASTON MEMORIAL HOSPITAL,
INC.,

Defendants.

Appeal by plaintiff from order entered 22 May 2007 by Judge
Beverly T. Beal in Gaston County Superior Court. Heard in the
Court of Appeals 2 April 2008.

Katherine Freeman, for plaintiff.

Parker Poe Adams & Bernstein LLP, by Harold D. “Chip” Holmes
and Scott S. Addison, for defendant Gaston Memorial Hospital,
Inc.

Caruthers & Roth, P.A., by Norman F. Klick, Jr. and Robert N.
Young, for defendant Robert R. Riedle, M.D.

ELMORE, Judge.

On 8 March 2006, Michael H. McGuire (plaintiff) filed a
complaint against Dr. Robert R. Riedle and Gaston Memorial
Hospital, Inc. (together, defendants), alleging negligence in
leaving a fragment of a screwdriver in plaintiff’s knee during
reconstructive surgery. In his complaint, plaintiff included a
Rule 9(j) certification stating that Dr. Roy A. Majors, the surgeon
who removed the fragment from plaintiff’s knee, had reviewed themedical care provided plaintiff by defendants, was reasonably
expected to qualify as an expert witness, and was willing to
testify as to defendants’ alleged breach of the standard of care.
On 20 July 2006, plaintiff responded to defendants’ discovery
requests, stating that Dr. Majors’ opinions were unknown. On 13
November 2006, defendants deposed Dr. Majors, who stated that he
never reviewed plaintiff’s prior care and was never willing to
testify as to any alleged breach of the standard of care.
Plaintiff, in his own deposition, stated that he did not recall
ever speaking to Dr. Majors regarding any alleged breach of the
standard of care and that he also did not recall Dr. Majors ever
agreeing to serve as an expert witness. Dr. Majors never spoke to
plaintiff’s attorneys about serving as an expert witness.
Dr. Reidle’s attorneys contacted plaintiff’s counsel
requesting that he dismiss his suit based on his failure to satisfy
Rule 9(j). Both defendants’ attorneys filed motions to dismiss,
including motions to dismiss based on Rule 9(j), and plaintiff
filed a motion to amend his complaint. On 22 May 2007, the trial
court entered an order dismissing the suit for failure to comply
with Rule 9(j). There was no mention of the motion to amend in the
trial court’s order. Plaintiff now appeals the trial court’s 22
May 2007 order, claiming that the trial court erred in granting the
motion to dismiss and in failing to grant his motion to amend.
After a thorough review of the record and briefs, we affirm the
trial court’s order of the trial court. We first address plaintiff’s argument that the trial court
erred in dismissing his complaint based on his failure to abide by
Rule 9(j) of our Rules of Civil Procedure. Rule 9(j) states:
Medical malpractice. — Any complaint alleging
medical malpractice by a health care provider
as defined in G.S. 90-21.11 in failing to
comply with the applicable standard of care
under G.S. 90-21.12 shall be dismissed unless:

(1) The pleading specifically asserts that
the medical care has 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
;

(2) The pleading specifically asserts that
the medical care has been reviewed by a person
that the complainant will seek to have
qualified as an expert witness by motion under
Rule 702(e) of the Rules of Evidence and who
is willing to testify that the medical care
did not comply with the applicable standard of
care, and the motion is filed with the
complaint; or

(3) The pleading alleges facts establishing
negligence under the existing common-law
doctrine of res ipsa loquitur

N.C. Gen. Stat. § 1A-1, Rule 9(j) (2007) (emphasis added).
Preliminarily, we note that plaintiff presents an incorrect
standard of review. Plaintiff contends that because the trial
court considered matters outside the pleadings in reaching its
decision, defendants’ motions to dismiss based on Rule 9(j)
violations were converted to a Rule 56 summary judgment motion.
Although plaintiff is correct that a motion to dismiss under Rule
12(b)(6) may be converted to a motion for summary judgment in such
a situation, see, e.g., North Carolina R. Co. v. Ferguson BuildersSupply, Inc., 103 N.C. App. 768, 771, 407 S.E.2d 296, 298 (1991)
(“Where matters outside the pleadings are received and considered
by the court in ruling on a motion to dismiss under Rule 12(b)(6),
the motion should be treated as a motion for summary judgment and
disposed of in the manner and on the conditions stated in G.S.
1A-1, Rule 56.”), this Court has recently stated that “when ruling
on [a motion to dismiss pursuant to Rule 9(j)], a court must
consider the facts relevant to Rule 9(j) and apply the law to
them.” Phillips v. A Triangle Women’s Health Clinic, 155 N.C. App.
372, 376, 573 S.E.2d 600, 603 (2002) (citation omitted). We
therefore note that “our review of Rule 9(j) compliance is de novo,
because such compliance clearly presents a question of law . . . .”
Smith v. Serro, ___ N.C. App. ___, ___, 648 S.E.2d 566, 568 (2007)
(quotations and citation omitted).
In this case, the trial court was unequivocal in stating that
it dismissed plaintiff’s action under Rule 9(j), concluding that
“Plaintiff failed to comply with the requirements of Rule 9(j) in
regard to the content of the complaint, and this action should be
dismissed.” Plaintiff’s argument that this Court’s review should
inquire as to whether there was any question of material fact, and
his contention that we must view the evidence in the light most
favorable to him, are therefore incorrect.
Rule 9(j) is clear that a potential expert witness must be
“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)(1)
(2007). It is equally clear that Dr. Majors was not willing to doso. Plaintiff’s arguments regarding good faith are inapposite:
Rule 9(j) contains no good faith exception. See Oxendine v. TWL,
Inc.
, ___ N.C. App. ___, ___, 645 S.E.2d 864, 867 (2007) (“When the
language of a statute is clear and without ambiguity, it is the
duty of this Court to give effect to the plain meaning of the
statute, and judicial construction of legislative intent is not
required.”) (quotations and citations omitted).
Moreover, contrary to plaintiff’s claims, Rule 9(j) is not
merely facial. As our Supreme Court recently stated,
Rule 9(j) clearly provides that “any complaint
alleging medical malpractice . . . shall be
dismissed” if it does not comply with the
certification mandate . . . indicat[ing] that
medical malpractice complaints have a distinct
requirement of expert certification with which
plaintiffs must comply. Such complaints will
receive strict consideration by the trial
judge.

Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002)
(citation omitted) (emphasis in original). Plaintiff did not
present the trial court with an expert who was “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)(1) (2007). The trial
court therefore correctly dismissed the action.

(See footnote 1)



Moreover, defendants are correct that plaintiff failed to
assert a res ipsa loquitur claim as required by Rule 9(j)(3). Plaintiff acknowledges in his brief that “the incantation ‘res ipsa
loquitur
‘ was not used in the complaint . . . .” However, he
argues that the complaint put forth sufficient allegations to infer
such a claim. We disagree.
This Court recently stated that res ipsa loquitur “is
applicable when no proof of the cause of an injury is available,
the instrument involved in the injury is in the exclusive control
of defendant, and the injury is of a type that would not normally
occur in the absence of negligence.” Howie v. Walsh, 168 N.C. App.
694, 698, 609 S.E.2d 249, 251 (2005) (quotations and citation
omitted). Moreover,
in order for the doctrine to apply, not only
must plaintiff have shown that [the] injury
resulted from defendant’s [negligent act], but
plaintiff must [be] able to show – without the
assistance of expert testimony – that the
injury was of a type not typically occurring
in absence of some negligence by defendant.

Id. at 698, 609 S.E.2d at 252 (quotations and citation omitted)
(alterations in original). We note that in plaintiff’s complaint,
he alleged negligence
in the performance of the April 11, 2001
arthroscopic-assisted ACL reconstruction left
knee [sic] in that:
a. the Defendants failed to note the
damage to the screwdriver used to
set the Bioscrew;
b. the Defendants failed to note any
difficulty with the aforementioned
screwdriver in the Operative Report;
c. the Defendants failed to note that a
fragment of the screwdriver remained
within the radiolucent screw within
the femoral tunnel in the operative
report;
d. the Defendant, Dr. Robert R. Riedle,
failed to notify the Plaintiff ofthe screwdriver fragment that
remained in the Plaintiff’s left
knee;
e. the Defendant, Dr. Robert R. Riedle,
failed to provide proper follow-up
care in that there was no evaluation
or monitoring of the screwdriver
fragment.

These are the only allegations of negligence on defendants’ part in
the entire complaint. These allegations do not demonstrate that
“no proof of the cause of [the] injury is available, the instrument
involved in the injury [was] in the exclusive control of defendant,
[or] the injury is of a type that would not normally occur in the
absence of negligence.” Walsh, 168 N.C. App. at 698, 609 S.E.2d
at 251 (quotations and citation omitted). Nor does plaintiff
contend in his complaint that the “injury was of a type not
typically occurring in absence of some negligence by defendant.”
Id. at 698, 609 S.E.2d at 252. Accordingly, plaintiff failed to
state a res ipsa loquitur claim, and the trial court correctly
dismissed his action under Rule 9(j).
Plaintiff also claims that the trial court erred in not
considering or allowing his motion to amend. “We review a denial
of a motion to amend under Rule 15(a) for abuse of discretion.”
Pinewood Homes, Inc. v. Harris, ___ N.C. App. ___, ___, 646 S.E.2d
826, 833 (2007) (citation omitted).

(See footnote 2)


Plaintiff filed his motion pursuant to Rule 15 of our Rules of
Civil Procedure, which states, in reference to plaintiff’s
situation, that “a party may amend his pleading only by leave of
court or by written consent of the adverse party; and leave shall
be freely given when justice so requires.” N.C. Gen. Stat. § 1A-1,
Rule 15(a) (2007). “[L]eave to amend a pleading may be properly
denied under certain circumstances, including but not limited to
undue delay, bad faith on the part of the movant, or undue
prejudice to the opposing party by virtue of allowance of the
amendment.” Zenobile v. McKecuen, 144 N.C. App. 104, 109, 548
S.E.2d 756, 759 (2001).
Here, plaintiff sought to amend his complaint to substitute a
new expert witness, even though the medical care had not been
reviewed by a potential expert witness prior to the filing of the
complaint. Under Rule 9(j), an expert witness’s review of medical
care “must occur before filing to withstand dismissal.” Ngo, 355
N.C. at 204, 558 S.E.2d at 166 (emphasis in original). As in Ngo, [t]here is no evidence in the record that
plaintiff alleged the review occurred before
the filing of the original complaint.
Specifically, there was no affirmative
affidavit or date showing that the review took
place before the statute of limitations
expired. Allowing 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).

Id. at 204, 558 S.E.2d at 166-67. Accordingly, we hold that the
trial court did not err in its failure to review or grant
plaintiff’s motion to amend.
Having conducted a thorough review of the briefs and records,
we find no error. We therefore affirm the trial court’s order.
Affirmed.
Judges HUNTER and STROUD concur.


Footnote: 1



We decline to address the parties’ arguments regarding
Dr. Majors’ review of the care given. In order to satisfy the
Rule 9(j)(1) requirements, plaintiff’s expert must have been
willing to testify. Because he was not so willing, it is
irrelevant whether he in fact reviewed the care that plaintiff
received.


Footnote: 2



We note plaintiff’s argument that the trial court
committed reversible error in failing to explicitly rule on the
motion to amend. The case on which plaintiff relies, Zenobile v.
McKecuen
, 144 N.C. App. 104, 109, 548 S.E.2d 756, 759 (2001), is
distinguishable. In Zenobile, this Court held, in part, that
“[t]he trial court’s decision to rule on [the defendant’s] motion
to dismiss before ruling on plaintiff’s motion for leave to amend
constitutes reversible error.” Id. However, in Zenobile theplaintiff filed a motion to amend before the defendant filed his
motion to dismiss; the trial court failed to rule on the
plaintiff’s motion for approximately seven months. Also, unlike
the current case, the plaintiff in Zenobile filed the motion to
amend within the applicable statute of limitations. Finally, as
this Court noted in Zenobile, “leave to amend a pleading may be
properly denied under certain circumstances, including but not
limited to undue delay, bad faith on the part of the movant, or
undue prejudice to the opposing party by virtue of allowance of
the amendment.” Id. (citation omitted). It appears from the
record that the trial court, in granting the motion to dismiss,
effectively denied the motion to amend. Accordingly, we address
this issue as though the trial court had properly denied
plaintiff’s motion.

*** Converted from WordPerfect ***

Leave a Reply

Your email address will not be published. Required fields are marked *

*