                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                        No. COA18-674

                                     Filed: 5 March 2019

Pitt County, No. 16 CVS 318

DONNA J. PRESTON, Administrator of the Estate of WILLIAM M. PRESTON,
Plaintiff,

               v.

ASSADOLLAH MOVAHED, M.D., DEEPAK JOSHI, M.D., and PITT COUNTY
MEMORIAL HOSPITAL, INCORPORATED, d/b/a, VIDANT MEDICAL CENTER,
Defendants.


        Appeal by Plaintiff from order entered 25 October 2017 by Judge Jeffery B.

Foster in Pitt County Superior Court. Heard in the Court of Appeals 17 January

2019.


        Edwards Kirby, LLP, by David F. Kirby, John R. Edwards, and Mary Kathryn
        Kurth; Laurie Armstrong Law, PLLC, by Laurie Armstrong; for Plaintiff-
        Appellant.

        Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by John D.
        Madden and Eva Gullick Frongello, for Defendant-Appellee.


        COLLINS, Judge.


        Plaintiff Donna Preston, decedent William M. Preston’s widow and estate

representative, appeals an order dismissing her wrongful death action alleging

medical malpractice against Defendant Assadollah Movahed, M.D.1                          After a


        1
        The remaining Defendants have settled the claims against them and Plaintiff has voluntarily
dismissed them from this appeal pursuant to N.C. R. App. P. 37(e)(2) (2018).
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                                   Opinion of the Court



compliance hearing, the trial court concluded the facially valid Rule 9(j) pre-lawsuit

medical expert review certification in Plaintiff’s medical malpractice complaint was

factually unsupported when it was filed, which was two days before the expiration of

the applicable statute of limitations period.       Therefore, the trial court granted

Defendant’s motion to dismiss the complaint for substantive Rule 9(j) noncompliance.

      On appeal, Plaintiff contends the trial court erred by dismissing her complaint

because the certificate substantively complied with Rule 9(j). We disagree. Because

competent evidence supported the trial court’s factual findings, which in turn

supported its legal conclusions and ultimate decision that the Rule 9(j) certificate was

factually unsupported at the time Plaintiff had filed her complaint and before the

statute of limitations period had expired, we affirm the trial court’s order dismissing

her complaint for substantive Rule 9(j) noncompliance.

                I. Procedural History and Factual Background

      Plaintiff’s complaint and later medical expert deposition testimony reveals the

following facts: Around 8:30 a.m. on 3 February 2014, William M. Preston (Preston)

presented to Vidant Medical Center’s emergency department complaining of chest

pain and shortness of breath. Preston’s emergency room electrocardiogram (EKG)

test revealed abnormalities consistent with myocardial ischemia, a condition where

not enough blood reaches the heart. That evening, Preston was admitted to the

hospital’s observation unit under the care of attending physician Pranitha



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Prodduturvar, M.D. After Dr. Prodduturvar examined Preston, she ordered a cardiac

workup including, inter alia, a nuclear stress test (NST).

      Around noon the next day, hospital providers administered Preston’s NST. An

NST involves injecting a patient with radioactive material and subjecting him to

cardiovascular exercise in order to obtain nuclear images of the heart revealing blood

flow while under stress and at rest. Dr. Movahed, the hospital’s attending nuclear

cardiologist, who was neither acting as a formal cardiology consult nor had personally

examined Preston, was assigned to interpret Preston’s NST results. Interpreting the

results of an NST involves assessing the treadmill stress test and EKG tracings taken

of the heart, in conjunction with analyzing the nuclear cardiology images.

      Following the test, Dr. Movahed orally reported his interpretation of Preston’s

NST to cardiology fellow Deepak Joshi, M.D., with instructions for Dr. Joshi to

communicate his findings to Preston’s then-attending physician, Neha Doctor, M.D.

In Dr. Movahed’s later-dictated report, he noted “a perfusion defect in [Preston’s]

heart . . . might be due to significant gas in the stomach, but . . . he could not rule out

ischemia as a possible cause of the abnormality.” Dr. Movahed also suggested, based

upon Preston’s abnormal NST, “[o]ne may consider a [coronary computed tomography

angiogram, also known as a] CTA,” which is an additional cardiac test to evaluate

suspected coronary artery disease.




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      Subsequently, on 4 February 2014, attending physician Dr. Doctor personally

examined Preston and ordered his discharge from the hospital.              Preston was

instructed to follow up with his primary care physician about ordering an MRI to

assess potential neurological causes for his symptoms and was scheduled for an

outpatient cardiology follow-up on 20 February 2014.

      On 6 February 2014, Preston was examined by his primary care physician, who

ordered the MRI.    On 10 February 2014, Preston returned to his primary care

physician to discuss the MRI results, which revealed no neurological explanation for

Preston’s symptoms. On 13 February 2014, six days before his scheduled outpatient

cardiology follow-up, Preston suffered a fatal heart attack in his home.

      On 25 November 2015, Plaintiff filed a wrongful death medical malpractice

complaint against Dr. Prodduturvar and Dr. Doctor, and four medical entities

associated with Vidant Medical Center (first complaint).        Plaintiff alleged the

physicians were medically negligent in their care of Preston during his admission to

the hospital and their failure to order further immediate testing and medical

treatment before he was discharged from the hospital. Neither Dr. Movahed nor Dr.

Joshi were named in the first complaint.

      On 12 February 2016, two days before the applicable statute of limitations

period expired, Plaintiff filed a second wrongful death medical malpractice complaint,

this time naming Dr. Movahed and Dr. Joshi, and their employer, Pitt County



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Memorial Hospital, Incorporated, d/b/a Vidant Medical Center (second complaint).

The second complaint asserted Dr. Movahed was negligent in that he

            a. Failed to accurately interpret and communicate the
            findings and significance of diagnostic tests performed on
            Mr. Preston;

            b. [F]ailed to adequately, appropriately and timely suggest
            and perform a full assessment and work-up to rule out life-
            threatening acute coronary artery disease for a patient at
            high risk for the disease, including, but not limited to,
            cardiac catheterization;

            c. [F]ailed to recommend a cardiology consult for Mr.
            Preston prior to his discharge from Vidant Medical Center
            with acute chest pain;

            d. [F]ailed to conduct an adequate assessment of Mr.
            Preston’s risk factors for coronary artery syndrome;

            e. [F]ailed to prescribe any treatment to Mr. Preston for
            possibility of acute coronary artery disease before
            discharging him from the hospital; [and]

            f. [F]ailed to comply with standards of practice among
            physicians and cardiolovascular [sic] disease specialists
            with the same or similar training and experience in Pitt
            County, North Carolina, or similar communities in 2014[.]

      The complaint also included the following Rule 9(j) certificate:

            the medical care of the defendant and all medical records
            pertaining to the alleged negligence of this defendant that
            are available to the plaintiff after reasonable inquiry have
            been reviewed before the filing of this complaint by a
            person who is reasonably expected to qualify as an expert
            witness under Rule 702 of the North Carolina Rules of
            Evidence and who is willing to testify that the medical care
            did not comply with the applicable standard of care.


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       On 25 April 2016, Defendant filed his answer to the second complaint, denying

all allegations of negligence and breach of the standard of care, and moving to dismiss

Plaintiff’s action, inter alia, “[i]f discovery indicates that Plaintiff did not comply with

the requirements of Rule 9(j)[.]”

       On 9 August 2016, in response to Defendant’s Rule 9(j) interrogatories,

Plaintiff identified Stuart Toporoff, M.D., “a physician specializing in the area of

cardiology,” and Andy S. Pierce, M.D., “a physician specializing in the area of internal

medicine and hospitalist care,” as her Rule 9(j) pre-review medical experts. Attached

to her response, Plaintiff included, inter alia, Dr. Toporoff’s curriculum vitae and a

Rule 9(j) pre-review medical expert affidavit signed by Dr. Toporoff.2 In his affidavit,

Dr. Toporoff stated he had “reviewed the medical records related to medical care

provided to William Preston during his presentation with chest pain to Vidant

Medical Center on February 3–4, 2014” and had “been provided a packet of

information . . . about the training and experience of . . . [Dr.] Movahed” and “the

Answer of Defendant Neha Doctor, MD” to the first complaint. Based upon his review

of these materials, Dr. Toporoff opined that the “medical care provided to William

Preston during his admission to Vidant Medical Center . . . for chest pain, failed to




       2  Plaintiff attached Dr. Toporoff’s 10 November 2015 affidavit, which was relevant to her first
lawsuit against the hospitalists. She later supplied Defendant with Dr. Toporoff’s 12 February 2016
affidavit, which was relevant to her second lawsuit and intended to be attached to her response. We
discuss only Dr. Toporoff’s second affidavit.

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comply with the applicable standard of care for the evaluation of a patient with chest

and arm pain who presented with Mr. Preston’s signs, symptoms and medical history”

and “expressed [his] willingness to testify to the above if called upon to do so.”

      On 15 December 2016, Plaintiff submitted an expert witness designation,

identifying her Rule 9(j) experts Dr. Toporoff and Dr. Pierce, as well as nuclear

cardiologists Mark I. Travin, M.D., and Salvador Borges-Neto, M.D.

      On 23 March 2017, Defendant deposed Dr. Toporoff. During his deposition,

Dr. Toporoff confirmed that Dr. Movahed’s involvement in Preston’s care was limited

to interpreting his NST results. Dr. Toporoff also admitted that, as a non-nuclear

cardiologist who never interpreted the results of an NST, he was incompetent to

qualify as a nuclear cardiologist against Dr. Movahed or criticize his interpretation

of the nuclear imaging component of Preston’s NST. But, Dr. Toporoff testified that

he felt qualified as a clinical cardiologist who interpreted EKG tracings when

administering treadmill stress tests to patients and thus comfortable stating Dr.

Movahed’s interpretation of the EKG component of Preston’s NST fell below the

applicable standard of care.    However, Dr. Toporoff further testified that, when

initially consulted to review the case before Plaintiff filed her first lawsuit against

the physicians, he told Plaintiff not to name Dr. Movahed because Dr. Toporoff

refused to testify against him unless Plaintiff retained a nuclear cardiologist

competent and willing to testify that Dr. Movahed’s interpretation of the nuclear



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imaging component of Preston’s NST fell below the applicable standard of care. As

to what new information Dr. Toporoff reviewed in between the filings of the first and

second lawsuit, he admitted that the only additional medical record was the nuclear

images from Preston’s NST, which he confirmed he was incompetent to interpret, and

Dr. Doctor’s pleading in response to the first lawsuit.

      On 16 June 2017, Defendant filed a second motion to dismiss Plaintiff’s second

complaint under North Carolina Civil Procedure Rules 12(b)(6), 9(j), and 41. In

response, Plaintiff submitted a third affidavit from Dr. Toporoff signed 15 September

2017. In his third affidavit, Dr. Toporoff explained in greater detail the significance

of Dr. Doctor’s pleading in response to the first complaint, which Dr. Toporoff had

reviewed prior to signing his second Rule 9(j) affidavit naming Dr. Movahed before

Plaintiff filed the second complaint. Dr. Toporoff stated as follows:

             7) Based on the representation by Dr. Doctor in those
             documents of the following information: that Dr.
             Movahed’s report was NOT available to her prior to Mr.
             Preston’s discharge; that Dr. Movahed had specifically
             made recommendations to the hospitalist; and that Dr.
             Joshi communicated the results of the nuclear stress test
             with “cardiology’s” recommendation for an outpatient CT
             angiogram, I informed [Plaintiff] I was willing to testify
             that Dr. Movahed and Dr. Joshi violated standards of care
             in their collaboration and treatment of Mr. Preston.

             8) My criticisms of Drs. Movahed and Joshi include:
             failures to interpret, diagnose, document and communicate
             to the ordering physician the presence of chest pain and ST
             wave depression changes during Mr. Preston’s nuclear
             treadmill stress test that were consistent with ischemia;


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             and failure to recommend an immediate cardiology consult
             for Mr. Preston prior to his discharge.

      On 18 September 2017, the trial court held a Rule 9(j) compliance hearing on

Defendant’s motion to dismiss Plaintiff’s complaint. On 25 October 2017, the trial

court entered an order, concluding in relevant part that Dr. Movahed’s deposition

testimony established the facially valid Rule 9(j) certificate in Plaintiff’s second

complaint was factually unsupported when filed, and that Plaintiff had failed to

comply with Rule 9(j)’s substantive requirements before the applicable statute of

limitations period had expired. Accordingly, the trial court granted Defendant’s

motion to dismiss Plaintiff’s complaint for substantive Rule 9(j) noncompliance.

Plaintiff appeals.

                                    II. Discussion

      On appeal, Plaintiff contends the trial court erred by granting Defendant’s

motion to dismiss her action for noncompliance with Rule 9(j) because (1) her

complaint satisfied the purpose and substantive requirements underlying Rule 9(j);

(2) the trial court erred by determining it was unreasonable for Plaintiff to expect Dr.

Toporoff to qualify as an expert witness against Dr. Movahed; and (3) three of the

trial court’s twenty-seven factual findings supporting its ultimate ruling were not

supported by competent evidence. Because Plaintiff’s challenges to the trial court’s

factual findings inform our analysis as to whether her first two issues presented have




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merit, we first address Plaintiff’s challenges to the evidentiary sufficiency of the trial

court’s factual findings.

A. North Carolina Civil Procedure Rule 9(j)

      “Rule 9(j) serves as a gatekeeper, enacted by the legislature, to prevent

frivolous malpractice claims by requiring expert review before filing of the action.”

Vaughan v. Mashburn, ___ N.C. ___, ___, 817 S.E.2d 370, 375 (2018) (quoting Moore

v. Proper, 366 N.C. 25, 31, 726 S.E.2d 812, 817 (2012)). The Rule mandates that a

medical malpractice complaint “shall be dismissed unless”

             [t]he pleading specifically asserts that the medical care and
             all medical records pertaining to the alleged negligence . . .
             have been reviewed by a person [(1)] who is reasonably
             expected to qualify as an expert witness under Rule 702 of
             the Rules of Evidence and [(2)] 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)(1) (2017) (emphases added). However, “a complaint

facially valid under Rule 9(j) may be dismissed if subsequent discovery establishes

that the certification is not supported by the facts, at least to the extent that the

exercise of reasonable diligence would have led the party to the understanding that

its expectation was unreasonable.” Moore, 366 N.C. at 31–32, 726 S.E.2d at 817

(internal citations omitted).

      “Because Rule 9(j) requires certification at the time of filing that the necessary

expert review has occurred, compliance or noncompliance with the Rule is determined



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at the time of filing[,]” id. at 31, 726 S.E.2d at 817 (citations omitted), and “when

conducting this analysis, a court should look at ‘the facts and circumstances known

or those which should have been known to the pleader’ at the time of filing[,]” id.

(quoting Trapp v. Maccioli, 129 N.C. App. 237, 241, 497 S.E.2d 708, 711 (1998)).

B. Standard of Review

      We review de novo a trial court’s dismissal of a medical malpractice complaint

for substantive Rule 9(j) noncompliance. Estate of Wooden ex rel. Jones v. Hillcrest

Convalescent Ctr., Inc., 222 N.C. App. 396, 403, 731 S.E.2d 500, 506 (2012) (citations

omitted). Where, as here, “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.’” Id. (quoting Moore, 366 N.C. at 32, 726 S.E.2d at 818).

      Additionally, because Rule 9(j) imposes multiple threshold pleading

requirements that must be satisfied to survive dismissal, each one must be factually

supported in order to be substantively compliant with Rule 9(j). Thus, if subsequent

discovery establishes a facially valid certificate has no factual support for one of Rule

9(j)’s strict pleading requirements, a medical malpractice complaint is properly

dismissed for substantive Rule 9(j) noncompliance. See, e.g., McGuire v. Riedle, 190



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N.C. App. 785, 788, 661 S.E.2d 754, 758 (2008) (affirming dismissal for substantive

Rule 9(j) noncompliance solely on the ground that the “[p]laintiff 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.’” (quoting N.C. Gen. Stat. § 1A-1, Rule

9(j)(1))).

C. Sufficiency of Factual Findings

        The trial court here entered twenty-seven findings supporting its ultimate

decision to dismiss Plaintiff’s complaint for substantive Rule 9(j) noncompliance. In

her brief, Plaintiff challenges only the evidentiary sufficiency of factual findings 22,

24, and 27, rendering the remaining twenty-four findings binding on appeal. Ingram

v. Henderson Cty. Hosp. Corp., Inc., ___ N.C. App. ___, ___, 815 S.E.2d 719, 733 (2018)

(citation omitted).    We thus first address the evidentiary sufficiency of each

challenged finding, and then assess whether the trial court’s findings supported its

conclusions and ultimate decision.

1. Factual Finding 22

        Plaintiff first challenges factual finding 22, which reads: “Dr. Toporoff . . .

admitted that Dr. Movahed’s involvement was limited to the interpretation of the

nuclear stress test that was performed on Mr. Preston.” During his deposition, Dr.

Toporoff specifically confirmed that “Dr. Movahed’s involvement in this case is the




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interpretation of the nuclear stress test that was performed on Mr. Preston[.]” This

exchange supplied competent evidence to support the finding.

      Plaintiff argues the finding was erroneous because “the nuclear stress test

involves two parts: the exercise treadmill stress test and the nuclear heart images”

and “Dr. Toporoff was critical of Dr. Movahed’s interpretation of the . . . exercise

treadmill portion, which revealed issues with Mr. Preston’s heart requiring

immediate further testing.” Plaintiff’s explanation of the NST does not make the

challenged finding erroneous, nor does it contradict or undermine the competent

evidence supporting the finding.      Moreover, “[t]he well-established rule is that

findings of fact by the trial court supported by competent evidence are binding on the

appellate courts even if the evidence would support a contrary finding.” Scott v. Scott,

336 N.C. 284, 291, 442 S.E.2d 493, 497 (1994) (citation omitted)).

2. Factual Finding 24

      Plaintiff next challenges factual finding 24, which reads: “Dr. Toporoff only

agreed to testify in the Second Lawsuit if Plaintiff’s counsel retained a nuclear

cardiologist.” She argues this finding was erroneous because Dr. Toporoff (1) opined

in his Rule 9(j) affidavits that Preston’s medical care failed to comply with the

standard of care and “expressed [his] willingness to testify to the above if called upon

to do so”; and (2) testified when deposed that, at the time he signed his second Rule

9(j) affidavit prior to the filing of the second lawsuit, he “felt comfortable saying that



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Dr. Movahed failed to meet the standard of care as to the interpretation of the

exercise treadmill test.”

      When deposed, Dr. Toporoff testified that during his initial pre-lawsuit review

before Plaintiff filed her first complaint against the hospitalists, he said to Plaintiff

that he would not add Dr. Movahed to the lawsuit unless she got another nuclear

cardiologist to interpret the images because Dr. Toporoff “did not want to get into an

across-the-table where [Dr. Movahed was] highly competent in that field on paper

and [he] ha[d] no business criticizing his summaries.”             After Dr. Toporoff

acknowledged he was unqualified to testify against Dr. Movahed as a nuclear

cardiologist, he explained: “[T]hat’s how [Dr. Movahed’s] name got added later [to

the second lawsuit]. I refused to be a nuclear cardiologist against [Dr. Movahed].”

Later, when asked whether he wanted to change any answers to his prior testimony,

Dr. Toporoff stated:

             At the beginning, I just wanted to make it clear, because I
             remember a conversation I had with [Plaintiff’s attorney],
             that I would not testify against Dr. Movahed unless she
             came up with a nuclear cardiologist because I did not want
             to be across from him where he’s talking about nuclear
             images and I have to say, I know nothing. And once we
             agreed that she would get somebody else, then I felt I could
             handle myself clinically.

      The above testimony, including Dr. Toporoff’s testimony that “he would not

testify against Dr. Movahed unless [Plaintiff] came up with a nuclear cardiologist”

provides competent evidence directly supporting the trial court’s challenged finding


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number 24 that “Dr. Toporoff only agreed to testify in the Second Lawsuit if Plaintiff’s

counsel retained a nuclear cardiologist.” To the extent Plaintiff argues that Dr.

Toporoff’s Rule 9(j) affidavits or other deposition testimony may have supported a

different finding, “findings of fact by the trial court supported by competent evidence

are binding on the appellate courts even if the evidence would support a contrary

finding.” Id. (citation omitted). We overrule this argument.

      Although unnecessary to our resolution of this issue, we nonetheless address

Plaintiff’s argument that “Dr. Toporoff consistently and sufficiently indicated his

ability to render opinions regarding the treadmill stress test and the communication

failure of those results.”    To support this argument, Plaintiff emphasizes Dr.

Toporoff’s later deposition testimony in which he confirmed he “had opinions separate

and apart from the NST images” and was “comfortable . . . when [he] did the 9(j)

affidavit[ ] . . . saying that Dr. Movahed failed to meet the standard of care as it

applies to a cardiologist interpreting a treadmill stress test[.]”

      Dr. Toporoff’s statement that he “had opinions separate and apart from the

NST images” was immediately followed by his confirmation that he “didn’t feel as

confident expressing those [opinions] until [he] had some kind . . . of support for the

NST images as well.” Moreover, merely having an opinion does not indicate one’s

willingness to testify as to that opinion. Additionally, Dr. Toporoff’s confirmation

that he was “comfortable . . . when [he] did the 9(j) affidavit . . . saying that Dr.



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Movahed failed to meet the standard of care as it applies to a cardiologist interpreting

a treadmill stress test” was not an unequivocal assertion that he was “willing to

testify” against Dr. Movahed. Regardless of whether Dr. Toporoff had opinions or

was comfortable saying something about Dr. Movahed regarding the treadmill-stress-

test component of interpreting the NST, Dr. Toporoff’s testimony considered

contextually establishes that his willingness to testify against Dr. Movahed in any

capacity was conditioned upon having the support of a nuclear cardiologist who was

competent and willing to testify against Dr. Movahed as to the nuclear-imaging

component.

3. Factual Finding 27

      Plaintiff next challenges factual finding 27, which reads: “[A]s of the date the

Second Lawsuit was filed, Plaintiff had no cardiologist competent or willing to testify

against . . . Dr. Movahed . . . .” Plaintiff argues this finding was unsupported because

“[t]he record makes clear that Dr. Toporoff was able and willing to testify against Dr.

Movahed, and . . . was qualified to do so.”

      The unchallenged findings establish that Dr. Toporoff was Plaintiff’s only Rule

9(j) pre-lawsuit review cardiologist, and the two nuclear cardiologists were consulted

months after the second lawsuit was filed and after the statute of limitations had

expired. Having concluded above that Dr. Toporoff’s testimony supported challenged

factual finding 24—“Dr. Toporoff only agreed to testify in the Second Lawsuit if



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Plaintiff’s counsel retained a nuclear cardiologist”—that finding, along with

unchallenged factual finding 8 establishing that Plaintiff failed to retain a nuclear

cardiologist until months after she filed the second lawsuit, support the part of

challenged finding 27 that “as of the date the Second Lawsuit was filed, Plaintiff had

no cardiologist . . . willing to testify against . . . Dr. Movahed . . . .”

       In light of our conclusion that competent evidence supported that part of the

finding that no cardiologist was willing to testify against Dr. Movahed at the time

Plaintiff filed her second lawsuit, we need not address the sufficiency of evidence

supporting that part of the finding as to whether Dr. Toporoff was competent to testify

in any capacity against Dr. Movahed. See Vaughan, ___ N.C. at ___, 817 S.E.2d at

375 (“[R]ule [9(j)] averts frivolous actions by precluding any filing in the first place by

a plaintiff who is unable to procure an expert who both meets the appropriate

qualifications and, after reviewing the medical care and available records, is willing

to testify that the medical care at issue fell below the standard of care.” (emphasis

added)).

D. Sufficiency of Legal Conclusions

       Having concluded challenged factual findings 22, 24, and the no cardiologist

willing to testify portion of finding 27 were supported by competent evidence, our

review is whether those findings and the trial court’s remaining unchallenged

findings supported its conclusions and ultimate decision to dismiss Plaintiff’s



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complaint for substantive Rule 9(j) noncompliance.

      The trial court made the following relevant factual findings:

            2. . . . Mr. Preston . . . had a nuclear stress test (“NST”)
            conducted.

            3. The NST was interpreted by an attending nuclear
            cardiologist . . . , Dr. Movahed.

            ....

            8. On February 12, 2016, [Plaintiff] filed a second
            malpractice lawsuit . . . .

            ....

            10. This Second Lawsuit alleges that Dr. Movahed . . .
            w[as] negligent in [his] care and treatment of Mr. Preston
            prior to his discharge from VMC.

            ....

            12. The Second Lawsuit . . . contained a certification
            paragraph that was facially compliant with Rule 9(j). . . .

            13. . . . Plaintiff identified two 9(j) expert witnesses: Dr.
            Stuart Toporoff, a non-nuclear cardiologist . . . , and Dr.
            Andy Pierce, a hospitalist . . . .

            14. On December 15, 2016, Plaintiff formally designated
            her expert witnesses, which, in addition to Drs. Toporoff
            and Pierce, included two nuclear cardiologists, Dr. Mark
            Travin . . . and Dr. Salvadore Borges-Neto . . . .

            15. Plaintiff does not contend, nor would the record
            support, that these two nuclear cardiologists were
            consulted with, or agreed to provide testimony, prior to the
            Plaintiff filing either of the two lawsuits.



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16. On March 31, 2017, Defendants deposed Dr. Pierce,
who admitted that he is not a cardiologist and, therefore,
is “not really the person to critique Movahed.”

....

19. On March 23, 2017, Defendants [deposed] Dr. Toporoff,
a clinical cardiologist. Dr. Toporoff admitted that he is not
a nuclear cardiologist, and has never interpreted nuclear
stress tests.

....

22. Dr. Toporoff . . . admitted that Dr. Movahed’s
involvement was limited to the interpretation of the
nuclear stress test that was performed on Mr. Preston.

23. Dr. Toporoff . . . testified that he had no business
criticizing and did not feel competent criticizing Dr.
Movahed’s interpretation of the NST, and that he “would
look like a fool trying to interpret the [NST] images.” Dr.
Toporoff further testified that he “would not testify against
Dr. Movahed unless [Plaintiff’s attorney] came up with a
nuclear cardiologist [expert].”

24. Accordingly, Dr. Toporoff only agreed to testify in the
Second Lawsuit if Plaintiff’s counsel retained a nuclear
cardiologist.

25. Plaintiff did not consult with [nuclear cardiologist] Dr.
Travin until March 30, 2016.

26. Plaintiff did not consult with [nuclear cardiologist] Dr.
Borges-Neto until mid-November, 2016.

27. Accordingly, as of the date the Second Lawsuit was
filed, Plaintiff had no cardiologist . . . willing to testify
against . . . Dr. Movahed . . . .




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      Upon the findings, the trial court made the following relevant legal

conclusions:

               31. Dr. Toporoff’s deposition testimony demonstrated that,
               at the time the Second Lawsuit was filed, he was “not
               willing” to testify that the medical care at issue failed to
               comply with the applicable standard of care.

               ....

               34. Dr. Pierce testified that he had no opinions that were
               critical of the medical care provided by Dr. Movahed . . . .

               35. As Mr. Preston died February 13, 2014, Plaintiff had
               two years to file a medical malpractice action. . . .

               36. As of the date that the statute of limitations expired
               for the Second Lawsuit, February 13, 2016, Plaintiff had
               not complied with Rule 9(j).

               37. Despite the fact that Plaintiff subsequently obtained a
               nuclear cardiologist willing to testify regarding Dr.
               Movahed, it was only after the Second Lawsuit had been
               filed and after the statute of limitations had expired. . . .

      We hold these findings support the conclusions, and the conclusions support

the trial court’s ultimate determination that “Plaintiff has failed to comply with the

requirements of Rule 9(j) in regard to her Complaint in the Second Lawsuit, and that

therefore, [her complaint] should be dismissed in its entirety, with prejudice.”

Specifically, finding 13 establishes that Dr. Toporoff was Plaintiff’s only Rule 9(j)

cardiologist who had reviewed Preston’s care before the second lawsuit was filed.

Finding 24 establishes that Dr. Toporoff only agreed to testify against Dr. Movahed



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                                   Opinion of the Court



if Plaintiff hired a nuclear cardiologist. And findings 14, 15, 25, and 26 establish that

Plaintiff failed to consult with the nuclear cardiologists she retained until months

after she filed the second lawsuit. Those findings support the part of finding 27 that,

“as of the date the Second Lawsuit was filed, Plaintiff had no cardiologist . . . willing

to testify against . . . Dr. Movahed . . . .” These findings support the trial court’s

dispositive conclusion that “Plaintiff has failed to comply with the requirements of

Rule 9(j) in regard to her Complaint in the Second Lawsuit” and its ultimate decision

to dismiss her complaint for substantive Rule 9(j) noncompliance. Cf. Thigpen v. Ngo,

355 N.C. 198, 204, 558 S.E.2d 162, 166–67 (2002) (“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).”).

Accordingly, we affirm the trial court’s order.

      In light of our holding that the trial court’s findings and conclusions supported

its determination that Plaintiff failed to substantively comply with Rule 9(j)’s

requirement of securing a pre-lawsuit review medical expert willing to testify against

Dr. Movahed, we need not address Plaintiff’s remaining challenges to the sufficiency

of the findings or conclusions supporting the trial court’s additional determination

that Plaintiff failed to substantively comply with Rule 9(j)’s requirement that it was

reasonable for Plaintiff to expect Dr. Toporoff to qualify as an expert witness against

Dr. Movahed. Cf. McGuire, 190 N.C. App. at 788, 661 S.E.2d at 758 (affirming



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                                    Opinion of the Court



dismissal of a medical malpractice complaint for substantive Rule 9(j) noncompliance

solely on the ground that the “[p]laintiff did not present the trial court with an expert

who was ‘willing to testify . . . .’” (citation omitted)); id. at 788 n.1, 661 S.E.2d at 758

n.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.”).

                                    III. Conclusion

       Because the trial court’s findings supported by Dr. Toporoff’s deposition

testimony established that his willingness to testify against Dr. Movahed was

conditioned upon Plaintiff securing a nuclear cardiologist, both of whom were

consulted and retained months after she filed her second complaint and the

applicable statute of limitations period had expired, no factual support existed for

that part of Plaintiff’s Rule 9(j) certification that her second complaint had been

“reviewed by a person . . . willing to testify that the medical care did not comply with

the applicable standard of care.”       Accordingly, we affirm the trial court’s order

granting Defendant’s motion to dismiss Plaintiff’s complaint for substantive Rule 9(j)

noncompliance.

       AFFIRMED.

       Judges TYSON and ZACHARY concur.



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