              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA15-1230

                               Filed: 30 December 2016

Iredell County, No. 15 CVS 910

MARIA VAUGHAN, Plaintiff,

             v.

LINDSAY MASHBURN, M.D., and LAKESHORE WOMEN’S SPECIALISTS, PC,
Defendants.


      Appeal by Plaintiff from order entered 27 August 2015 by Judge Stanley L.

Allen in Iredell County Superior Court. Heard in the Court of Appeals 29 March 2016

and opinion filed by this Court on 21 June 2016. By order entered 1 July 2016, this

Court allowed Plaintiff’s Motion to Withdraw Opinion and Stay Mandate.


      Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields and
      Joshua D. Neighbors; Shapiro, Appleton & Duffan, P.C., by Kevin M. Duffan;
      and Collum & Perry, PLLC, by Travis E. Collum, for Plaintiff.

      Parker Poe Adams & Bernstein, LLP, by Chip Holmes and John D. Branson,
      for Defendants.


      STEPHENS, Judge.


      This appeal presents the issue of whether a trial court abused its discretion in

denying Plaintiff’s motion to amend a timely-filed complaint alleging medical

malpractice in order to clarify a defective Rule 9(j) certification where (1) the motion

to amend is made after the statute of limitations has expired, but (2) the evidence is

undisputed that the actual Rule 9(j) review took place before the complaint was filed.
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                                   Opinion of the Court



Because Plaintiff’s amended complaint would not relate back to the filing date of the

original complaint, making the amendment futile, we are constrained to affirm the

trial court’s denial of Plaintiff’s motion to amend.

                         Factual and Procedural Background

      On 3 May 2012, Plaintiff Maria Vaughan underwent a hysterectomy performed

by Defendant Lindsay Mashburn, M.D., a physician practicing obstetrics and

gynecology as an employee of Defendant Lakeshore Women’s Specialists, PC.

Vaughan alleges that, during the procedure, Mashburn inappropriately inflicted a

surgical wound to Vaughan’s right uterer.          In preparation for filing a medical

malpractice claim against Defendants, in mid-October 2014, Vaughan’s trial counsel

contacted Nathan Hirsch, M.D., a specialist in obstetrics and gynecology who had

performed more than one hundred hysterectomies. Counsel sent Hirsch all medical

records related to Defendants’ alleged negligence for Hirsch’s review as required by

Rule 9(j) of the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat. § 1A-1,

Rule 9(j)(1) (2015) (requiring that a medical malpractice “pleading specifically

assert[] 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”) (emphasis added). On 31



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October 2014, Hirsch informed Vaughan’s counsel that he had formed the opinion

that the care and treatment provided to Vaughan by Defendants was a violation of

the applicable standard of care and that he would testify to that opinion. Thus, the

pre-suit review in Vaughan’s case complied in all respects with the requirements of

Rule 9(j).

        However, the medical malpractice complaint Vaughan filed on 20 April 2015

stated “the Plaintiff avers that the medical care received by Maria Vaugh[a]n

complained of herein has been reviewed . . . .” (Emphasis added). This certification

language comes from a prior version of Rule 9(j):1

                The medical care in this action has been reviewed by
                persons reasonably expected to qualify as expert witnesses
                pursuant to Rule 702 of the North Carolina Rules of
                Evidence and are willing to testify that the medical care in
                this case did not comply with the applicable standard of
                care.

N.C. Gen. Stat. § 1A-1, Rule 9(j)(1) (2009) (emphasis added). As Vaughan concedes,

her certification omitted the required assertion that “all medical records pertaining

to the alleged negligence that are available to the plaintiff after reasonable inquiry”

were reviewed by the medical expert.




1 In 2011, our General Assembly amended Rule 9(j) to, inter alia, substitute “medical care and all
medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable
inquiry have been reviewed” for “medical care has been reviewed” in subsections (j)(1) and (j)(2). See
Session Law 2011-400, s. 3. This amendment thus created an additional requirement that plaintiffs
certify the review of their medical records, as well as their medical care, by “persons reasonably
expected to qualify as expert witnesses . . . .” See N.C. Gen. Stat. § 1A-1, Rule 9(j)(1).

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      On 10 June 2015, Mashburn filed a motion to dismiss pursuant to Rule of Civil

Procedure 12(b)(6), asserting that the complaint failed to state a claim upon which

relief can be granted. On 12 June 2015, Defendants filed an answer, incorporating

Mashburn’s motion to dismiss by reference. On 30 June 2015, Vaughan filed a motion

for leave to file an amended complaint, seeking to amend the wording of the Rule 9(j)

certification to clarify that “all medical records pertaining to the alleged negligence

that are available to the plaintiff after reasonable inquiry” were reviewed by the

medical expert. Attached to the motion to amend were an affidavit of Vaughan’s trial

counsel, an affidavit of Hirsch, and Vaughan’s responses to Defendants’ Rule 9(j)

interrogatories, each of which indicated that Hirsch, who reasonably expected to

qualify as an expert witness pursuant to Rule 702, had reviewed Vaughan’s medical

records before the complaint was filed.

      Following a hearing on 10 August 2015, on 27 August 2015, the trial court

entered an order granting Defendants’ motion to dismiss and denying Vaughan’s

motion to amend, stating two bases for its ruling:

             1. Plaintiff’s Original Complaint, filed April 20, 2015, did
             not comply with Rule 9(j) of the North Carolina Rules of
             Civil Procedure, as amended effective October 1, 2011, in
             that the pleading did not specifically assert that the
             Plaintiff’s medical expert reviewed all medical records
             pertaining to the alleged negligence that are available to
             the Plaintiff after reasonably inquiry [and]

             2. Plaintiff’s Motion for Leave to File an Amended
             Complaint, filed on June 30, 2015, is . . . futile because the


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               proposed amendment to Plaintiff’s Original Complaint
               does not relate back to the filing date of Plaintiff’s Original
               Complaint, and the statute of limitations ran on May 3,
               2015.[]2

(Emphasis in original). From that order, Vaughan gave written notice of appeal on 5

September 2015.

                                            Discussion

       Vaughan argues that the trial court erred in concluding that her proposed

amendment was futile, and that, as a result, the court abused its discretion in denying

her motion to amend and erred in dismissing the action. Specifically, Vaughan

contends that the trial court was acting under a misapprehension of law, to wit, that

Vaughan’s proposed amended complaint did not relate back to the date of the filing

of the original complaint even though “uncontroverted evidence showed that an

appropriate expert review occurred before the filing of the original complaint.” We

are constrained by recent precedent to reject this argument.

               Motions to amend are governed by N.C. Gen. Stat. § 1A-1,
               Rule 15. Rule 15(a) provides that:

               A party may amend his pleading once as a matter of course
               at any time before a responsive pleading is served or, if the
               pleading is one to which no responsive pleading is
               permitted and the action has not been placed upon the trial
               calendar, he may so amend it at any time within 30 days
               after it is served. Otherwise a party may amend his
               pleading only by leave of court or by written consent of the


2 Medical malpractice claims must be brought within three years of the last allegedly negligent act of
the physician or medical care provider. See N.C. Gen. Stat. § 1-15(c) (2015).

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             adverse party; and leave shall be freely given when justice
             so requires.

             Generally, Rule 15 is construed liberally to allow
             amendments where the opposing party will not be
             materially prejudiced. Our standard of review for motions
             to amend pleadings requires a showing that the trial court
             abused its discretion.

Fintchre v. Duke Univ., __ N.C. App. __, __, 773 S.E.2d 318, 322-23 (2015) (citations

and brackets omitted). Futility of amendment is one reason that may justify a denial

of a motion to amend. Id. at __, 773 S.E.2d at 323. However, “[w]hen discretionary

rulings are made under a misapprehension of the law, this may constitute an abuse

of discretion.” Rutherford Elec. Mbrshp. Corp. v. 130 of Chatham, LLC, __ N.C. App.

__, __, 763 S.E.2d 296, 299 (2014) (citations and internal quotation marks omitted),

appeal dismissed and disc. review denied, __ N.C. __, 769 S.E.2d 192 (2015).

      Here, the trial court concluded that allowing Vaughan’s motion to amend

would be futile because the amended complaint would not relate back to the filing

date of her original complaint, a matter controlled by subsection (c) of Rule 15:

             A claim asserted in an amended pleading is deemed to have
             been interposed at the time the claim in the original
             pleading was interposed, unless the original pleading does
             not give notice of the transactions, occurrences, or series of
             transactions or occurrences, to be proved pursuant to the
             amended pleading.

N.C. Gen. Stat. § 1A-1, Rule 15(c) (2015). In the two decades since Rule 9(j) was

enacted, our State’s appellate courts have frequently considered the interplay



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between its certification requirements and the amendment and “relate back”

provisions of Rule 15(a) and (c).

      “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.

Rule 9(j) thus operates as a preliminary qualifier to control pleadings rather than to

act as a general mechanism to exclude expert testimony.” Moore v. Proper, 366 N.C.

25, 31, 726 S.E.2d 812, 817 (2012) (citation and internal quotation marks omitted;

emphasis in original). Soon after Rule 9(j) was enacted, this Court held that “a

medical malpractice complaint that fails to include [any] Rule 9(j) certification

[cannot] be subsequently amended pursuant to Rule 15 to include the Rule 9(j)

certification.” Keith v. N. Hosp. Dist., 129 N.C. App. 402, 404, 499 S.E.2d 200, 202,

disc. review denied, 348 N.C. 693, 511 S.E.2d 646 (1998). More recently, our Supreme

Court held that “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, 204, 558 S.E.2d

162, 166 (2002) (emphasis added). Vaughan cites Thigpen as controlling the outcome

of her appeal and “establish[ing] that a medical malpractice plaintiff may amend [her]

Rule 9(j) certification and receive benefit of relation back under Rule 15 so long as

there is evidence ‘the review occurred before the filing of the original complaint’ in




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the form of an affidavit or otherwise,” such as the evidence presented to the trial court

by Vaughan.

      We believe that Thigpen differs factually and procedurally from Vaughan’s

case in several respects, including that Thigpen actually filed an amended medical

malpractice complaint to cure her failure to include any Rule 9(j) certification in her

original complaint. Id. at 200, 558 S.E.2d at 164. “[S]ix days after the statute of

limitations expired, [the] plaintiff filed an amended complaint including a

certification that the ‘medical care has been reviewed’ by someone who would qualify

as an expert.” Id. The plaintiff’s case was dismissed by the trial court for failure to

comply with the requirements of Rule 9(j).         Id.    Thus, among other issues, the

Supreme Court considered whether

              an amended complaint which fails to allege that review of
              the medical care in a medical malpractice action took place
              before the filing of the original complaint satisfies the
              requirements of Rule 9(j). We hold it does not. . . . In light
              of the plain language of the rule, the title of the act, and
              the legislative intent previously discussed, it appears
              review must occur before filing to withstand dismissal.
              Here, in her amended complaint, [the] plaintiff simply
              alleged that [the] plaintiff’s medical care has been reviewed
              by a person who is reasonably expected to qualify as an
              expert witness. There 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).


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Id. at 204, 558 S.E.2d at 166-67 (citation, internal quotation marks, and some

brackets omitted; some emphasis added). In other words, the Court held that, where

an amended complaint is allowed to correct a flawed Rule 9(j) certification, the

amendment must specify that the required review occurred before the original

complaint was filed in order to satisfy the requirements of Rule 9(j). However,

contrary to Vaughan’s assertion on appeal, the above-quoted language does not stand

for the proposition that the inclusion of an “affirmative affidavit or date showing that

the review took place before the statute of limitations expired” will entitle a plaintiff

to (1) amend her Rule 9(j) certification or (2) receive benefit of relation back under

Rule 15. In Thigpen, our Supreme Court simply did not address those questions, as

it noted in holding that discretionary review had been improvidently allowed as to

the issue “of whether a plaintiff who files a complaint without expert certification

pursuant to Rule 9(j) can cure that defect after the applicable statute of limitations

expires by amending the complaint as a matter of right and having that amendment

relate back to the date of the original complaint.” Id. at 204-05, 558 S.E.2d at 167.

Thus, Thigpen is inapposite to Vaughan’s appeal.

      Instead, we conclude that this Court’s recent decisions in Alston v. Hueske, __

N.C. App. __, 781 S.E.2d 305 (2016) and Fintchre, supra, are dispositive and require

that we affirm the decision of the trial court in Vaughan’s case.




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       In Alston, as here, we reviewed a trial court’s denial of a plaintiff’s motion to

amend her medical malpractice complaint to comply with the Rule 9(j) certification

requirement and the court’s resulting dismissal of the plaintiff’s entire action. Id. at

__, 781 S.E.2d at 307. The Alston plaintiff’s original complaint alleged compliance

with Rule 9(j) as follows:

              29. Prior to commencing this action, the medical records
              were reviewed and evaluated by a duly Board Certified [sic]
              who opined that the care rendered to Decedent was below
              the applicable standard of care.

              30. . . . The medical care referred to in this complaint has
              been reviewed by person(s) who are reasonably expected to
              qualify as expert witnesses, or whom the plaintiff will seek
              to have qualified as expert witnesses under Rule 702 of the
              Rules of Evidence, and who is willing to testify that the
              medical care rendered [to the] plaintiff by the defendant(s)
              did not comply with the applicable standard of care.

Id. (emphasis added). This Rule 9(j) certification, like that in Vaughan’s original

complaint, did not track the statutory language. Like Vaughan, alerted to this defect

by the defendant’s answer and motion to dismiss after the expiration of the statute of

limitations, the plaintiff “requested leave to amend the pleadings in order to clearly

comply with Rule 9(j) . . . .” Id. “[T]he trial court denied the [plaintiff’s] request under

Rule 15(a). . . . reason[ing that] the legislature intended 9(j) be satisfied from the

beginning, at the time the complaint was filed.” Id.

       On appeal, the plaintiff first argued that the trial court erred in dismissing the

complaint under “a hyper-technical reading of the rule [that] conflicts with the


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purpose of Rule 9(j), to prevent frivolous malpractice claims [because a] reading of

the whole record show[ed] that [the plaintiff’s] claim is not frivolous.” Id. at __, 781

S.E.2d at 310. We rejected this contention, noting that

             Rule 9(j) requires “the medical care and all medical
             records” be reviewed by a person reasonably expected to
             qualify as an expert witness and who is willing to testify
             the applicable standard of care was not met. According to
             the complaint, the medical care was reviewed by someone
             reasonably expected to qualify as an expert witness who is
             willing to testify that [the] defendants did not comply with
             the applicable standard of care. However, the complaint
             alleges medical records were reviewed by a “Board
             Certified” that said the care was below the applicable
             standard of care. Thus, the complaint does not properly
             allege the medical records were reviewed by a person
             reasonably expected to qualify as an expert witness.

Id.   In so holding, this Court noted that, due to the imprecise language of the

certification in the original complaint, the Court did “not have enough information to

evaluate whether this witness could reasonably be expected to qualify as an expert

in this case.” Id.

       The Alston Court then considered the trial court’s denial of the plaintiff’s

motion to amend her original complaint so as to clarify her compliance with the

requirements of Rule 9(j). Citing Keith, the Court observed that, “[b]ecause the

legislature has required strict compliance with this rule, our courts have ruled that

if a pleader fails to properly plead his case in his complaint, it is subject to dismissal

without the opportunity for the plaintiff to amend his complaint under Rule 15(a)[,]”



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and that, further, “[b]ecause th[e] plaintiff did not file the complaint with the proper

Rule 9(j) certification before the running of the statute of limitation, the complaint

cannot have been deemed to have commenced within the statute.” Id. at __, 781

S.E.2d at 310, 311.

      Vaughan attempts to distinguish Alston from her own case by noting that,

unlike in Alston where the Court did “not have enough information to evaluate

whether th[e] witness could reasonably be expected to qualify as an expert[,]” id. at

__, 781 S.E.2d at 310, here the evidence is undisputed that Vaughan fully complied

with the review requirements of Rule 9(j) before the complaint was filed. However,

in affirming the trial court’s denial of the plaintiff’s motion to amend, the Alston Court

did not discuss or even mention the lack of clarity regarding whether the review

required by Rule 9(j) had actually been completed before the original complaint was

filed. See id. at __, 781 S.E.2d at 310-11. Likewise, the Court did not qualify its

holding that, where a “plaintiff did not file the complaint with the proper Rule 9(j)

certification before the running of the statute of limitation, the complaint cannot have

been deemed to have commenced within the statute.” Id. at __, 781 S.E.2d at 311.

      In Fintchre, this Court also considered the interplay of Rule 9(j) and Rule 15.

In that matter, as in Vaughan’s case,

             the trial court concluded that [the] plaintiff had failed to
             file a complaint containing the required Rule 9(j)
             certification within three years of the acts that caused her
             alleged injuries based on [the] plaintiff’s failure to allege


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               that all medical records pertaining to the alleged
               negligence were reviewed by a person who [the] plaintiff
               reasonably expected to qualify as an expert witness. The
               trial court further concluded that [the] plaintiff’s motion to
               amend the 9(j) certification in her second complaint . . . was
               futile because the statute of limitations elapsed.

__ N.C. App. at __, 773 S.E.2d at 323 (internal quotation marks omitted). The

plaintiff conceded that the language of the Rule 9(j) certification was deficient, but

argued that,

               because she complied with the substantive requirements of
               Rule 9(j) before she filed her first action, filed her first
               action within the statute of limitations, and filed her
               second action within one year of taking a voluntary
               dismissal of her first action, the trial court should have
               granted her motion to amend the Rule 9(j) certification in
               her second complaint.

Id. The Fintchre Court affirmed the trial court’s dismissal of that plaintiff’s action

based on the futility of her motion to amend:

               Both complaints failed to allege that a person reasonably
               expected to qualify as an expert had reviewed all available
               medical records pertaining to the alleged negligence.
               Because the second complaint was filed following the
               expiration of the statute of limitations, [the] plaintiff must
               rely on the first complaint in order to have timely filed her
               medical malpractice action. We hold that where [the]
               plaintiff failed to file a complaint including a valid Rule
               9(j) certification within the statute of limitations, granting
               [the] plaintiff’s motion to amend her second complaint
               would have been futile, as the trial court found.

Fintchre, __ N.C. App. at __, 773 S.E.2d at 325 (emphasis added). As with Alston,

Vaughan draws our attention to distinctions between her case and Fintchre, namely:


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(1) that Fintchre concerned the amendment of a complaint after a voluntary dismissal

pursuant to Rule 41(a); and (2) that Vaughan, unlike the plaintiff in Fintchre, did not

file two complaints with non-conforming Rule 9(j) certifications, the second of which

was filed after notice of the first certification’s deficiency. As with the distinctions

Vaughan notes from Alston, we are not persuaded that these distinctions with

Fintchre played a meaningful role in the Court’s reasoning or holding. Indeed, as

noted in the concurring opinion in Fintchre, in that matter, as here, it was clear that

the plaintiff had actually complied with the substance of Rule 9(j) and that her

certification failure did not violate the intent of the rule:

                [I]t is undisputed that [the] plaintiff complied with the
                requirement that her medical care and records be reviewed
                by a medical expert before her first complaint was filed and
                that [the] defendants had notice of that fact. Thus, the
                intent of Rule 9(j), to wit, requiring expert review of medical
                malpractice claims to prevent frivolous lawsuits, was
                plainly met before [the] plaintiff filed her first complaint.
                The obvious failure of [the] plaintiff’s trial counsel to word
                the Rule 9(j) certification of compliance as specified in the
                statute is a highly technical failure which here results in
                the dismissal of a medical malpractice case which is not
                frivolous for the reasons Rule 9(j) is designed to prevent. I
                am thus sympathetic with the position of [the] plaintiff,
                who is thereby denied any opportunity to prove her claims
                before a finder of fact. I question whether such a harsh and
                pointless outcome was intended by our General Assembly
                in enacting Rule 9(j).

Fintchre, __ N.C. App. at __, 773 S.E.2d at 327 (Stephens, J., concurring) (emphasis

in original).



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       Nonetheless, in this appeal, Vaughan argues that the recent decision of this

Court in Boyd v. Rekuc, __ N.C. App. __, 782 S.E.2d 916, disc. review denied, __ N.C.

__, __ S.E.2d __ (2016), controls the outcome of her case and mandates that we reverse

the trial court’s dismissal. Because the opinion in Boyd addressed a different issue

than that presented in Vaughan’s appeal, we disagree.

       In Boyd, this Court addressed the interplay between Rule 9(j) and Rule of Civil

Procedure 41(a), which

             allows a plaintiff to dismiss any action voluntarily prior to
             resting his case. . . . [and], where the dismissed action was
             filed within the applicable statute of limitations, . . . [to]
             commence a new action (based on the same claim) outside
             of the applicable statute of limitations so long as the new
             action is commenced within one year after the original
             action was dismissed.

Id. at __, 782 S.E.2d at 917 (citation and emphasis omitted). After “the trial court

granted [the d]efendants’ motion to dismiss [the p]laintiff’s [second] complaint,

concluding that [it] was not filed within the applicable statute of limitations[,]” the

plaintiff timely appealed. Id. This Court reversed the trial court’s dismissal, holding

that

             where a plaintiff voluntarily dismisses a medical
             malpractice complaint which was timely filed in good faith
             but which lacked a required Rule 9(j) certification, said
             plaintiff may re-file the action after the expiration of the
             applicable statute of limitations provided that (1) he files
             his second action within the time allowed under Rule 41
             and (2) the new complaint asserts that the Rule 9(j) expert



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             review of the medical history and medical care occurred
             prior to the filing of the original timely-filed complaint.

Id. (emphasis omitted). The Court reached this result after concluding that the “case

involve[d] the interplay between Rule 9(j) and Rule 41(a)(1) of our Rules of Civil

Procedure” and was “essentially ‘on all fours’ with our Supreme Court’s 2000 opinion

in Brisson v. Santoriello, 351 N.C. 589

, 528 S.E.2d 568 (2000).” Id.

      In her motion, Plaintiff specifically cites the following language in Boyd,

purporting to summarize the holding of Brisson:

             A medical malpractice complaint which fails to include the
             required Rule 9(j) certification is subject to dismissal with
             prejudice pursuant to Rule 9(j). Prior to any such dismissal,
             however, said plaintiff may amend or refile (pursuant to
             Rules 15 or 41, respectively) the complaint with the proper
             Rule 9(j) certification. Further, if such subsequent
             complaint is filed after the applicable statute of limitations
             has expired but which otherwise complies with Rule 15 or
             41, the subsequent complaint is not time-barred if it
             asserts that the Rule 9(j) expert review occurred before the
             original complaint was filed.

Id. at __, 782 S.E.2d at 918. This language in Boyd is both dictum and erroneous in

regard to the holding in Brisson. First, as noted supra, no issue regarding a Rule

15(a) amendment was before this Court in Boyd. Second, the Supreme Court did not

consider the interplay of Rules 9(j) and 15(a) in Brisson. The plaintiff in Brisson filed

a complaint lacking a proper Rule 9(j) certification, and the defendant moved to

dismiss on that basis. 351 N.C. at 591, 528 S.E.2d at 569. The plaintiff then filed a


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motion to amend the complaint per Rule 15(a), or in the alternative, to take a

voluntary dismissal per Rule 41(a). Id. at 592, 528 S.E.2d at 570. The trial court

denied the motion to amend, and the plaintiff subsequently took a voluntary

dismissal and later filed a second complaint with the proper Rule 9(j) certification.

Id. After the trial court dismissed the second complaint as barred by the statute of

limitations, the plaintiff appealed. Id. In its opinion, the Supreme Court stated:

               We note at the outset that the Court of Appeals, in its
               opinion, addressed at length the effects of [the] plaintiffs’
               proposed amended complaint. We find that [the] plaintiffs’
               motion to amend, which was denied, is neither dispositive
               nor relevant to the outcome of this case. Whether the
               proposed amended complaint related back to and
               superceded the original complaint has no bearing on this
               case once [the] plaintiffs took their voluntary dismissal on
               6 October 1997. . . .

               The only issue for us to review on appeal is whether [the]
               plaintiffs’ voluntary dismissal pursuant to N.C.R. Civ. P.
               41(a)(1) effectively extended the statute of limitations by
               allowing [the] plaintiffs to refile their complaint against
               defendants within one year, even though the original
               complaint lacked a Rule 9(j) certification. We hold that it
               does.

Id. at 593, 528 S.E.2d at 570 (emphasis added).3

       Therefore, we must reject Vaughan’s assertion in her motion that

               Boyd unequivocally holds that a plaintiff may amend a
               medical malpractice complaint outside of the applicable
               statute of limitations in order to truthfully allege

3 The Fintchre Court also noted this critical difference in distinguishing Brisson, upon which the
plaintiff in that case heavily relied with regard to her Rule 15(a) argument. See Fintchre, __ N.C. App.
at __, 773 S.E.2d at 323-24.

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             compliance with Rule 9(j) where the requisite review
             occurred prior to the filing of the first complaint. Further,
             Boyd establishes that it is error for the trial court to deny
             such an amendment based on futility.

The issue of amending complaints was simply not before this Court in Boyd, and thus

the opinion in that matter neither held nor established the points urged by Vaughan.

      For the reasons discussed above, we are again compelled by precedent to reach

“a harsh and pointless outcome” as a result of “a highly technical failure” by

Vaughan’s trial counsel—the dismissal of a non-frivolous medical malpractice claim

and the “den[ial of] any opportunity to prove her claims before a finder of fact.”

Fintchre, __ N.C. App. at __, 773 S.E.2d at 327 (Stephens, J., concurring).

                                      Conclusion

      In sum, our case law establishes that, where a medical malpractice “plaintiff

did not file the complaint with the proper Rule 9(j) certification before the running of

the statute of limitation, the complaint cannot have been deemed to have commenced

within the statute.” Alston, __ N.C. App. at __, 781 S.E.2d at 311 (emphasis added).

Thus, “where [a] plaintiff failed to file a complaint including a valid Rule 9(j)

certification within the statute of limitations, granting [the] plaintiff’s motion to

amend her second complaint would have been futile . . . .” Fintchre, __ N.C. App. at

__, 773 S.E.2d at 325 (emphasis added). The trial court’s conclusion that Vaughan’s

amendment would be futile was therefore correct under our established precedent

and not a misapprehension of law. As a result, we cannot conclude that the trial


                                          - 18 -
                              VAUGHAN V. MASHBURN

                                 Opinion of the Court



court’s denial of Vaughan’s motion to amend was an abuse of discretion. Accordingly,

the trial court’s order denying that motion and dismissing Vaughan’s medical

malpractice complaint must be affirmed. While we are sympathetic to the arguments

of Vaughan’s able appellate counsel and appreciate the highly technical nature of our

decision here, we are bound by our existing precedent. This Court simply does not

have the authority to rule otherwise.

      AFFIRMED.

      Judges BRYANT and McCULLOUGH concur.




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