              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA18-295

                               Filed: 2 October 2018

Wake County, No. 17 CVS 4362

STARLA N. FAIRFIELD and LENNY FAIRFIELD, husband and wife, Plaintiffs,

             v.

WAKEMED, also doing business as WAKEMED HEALTH & HOSPITALS; MARSHA
M. SMITH, M.D.; BENJAMIN GERMAN, M.D.; CHUDARATNA BHARGAVA, M.D.;
and JOHN & JANE DOE MEDICAL STAFF, Defendants.


      Appeal by plaintiff from order entered 16 November 2017 by Judge W.O.

Smith, III in Wake County Superior Court.           Heard in the Court of Appeals 5

September 2018.


      Michael A. Jones for plaintiffs-appellants.

      Cranfill Sumner & Hartzog LLP, by Carl Newman and Katherine Hilkey-
      Boyatt, for defendants-appellees.


      DAVIS, Judge.


      In this case, we must once again determine the effect of a litigant’s failure to

fully comply with the pleading requirements imposed by Rule 9(j) of the North

Carolina Rules of Civil Procedure on a complaint alleging medical malpractice. Starla

Fairfield and Lenny Fairfield (“Plaintiffs”) appeal from the trial court’s order

dismissing this action based on their noncompliance with Rule 9(j). We affirm.

                      Factual and Procedural Background
                                FAIRFIELD V. WAKEMED

                                   Opinion of the Court



      We have summarized the pertinent facts below using Plaintiffs’ own

statements from their complaint, which we treat as true in reviewing a trial court’s

order granting a motion to dismiss. See, e.g., Stein v. Asheville City Bd. of Educ., 360

N.C. 321, 325, 626 S.E.2d 263, 266 (2006) (“When reviewing a complaint dismissed

under Rule 12(b)(6), we treat a plaintiff’s factual allegations as true.”).

      On 10 May 2014, Starla Fairfield was admitted to WakeMed Health &

Hospitals (“WakeMed”) in connection with an accidental overdose of acetaminophen.

During her treatment, she was given a dose of Mucomyst that was approximately five

times greater than the recommended dose. Medical personnel at WakeMed contacted

Carolinas Poison Center, and emergency dialysis was ultimately performed on Mrs.

Fairfield.   Mrs. Fairfield and her husband were informed by medical staff at

WakeMed that the staff was “only aware of two other cases of Mucomyst overdose,

both resulting in death and severe brain damage, and therefore, that Mrs. Fairfield

would also most likely die.”

      Mrs. Fairfield was subsequently released from WakeMed. As a result of this

incident, she continues to experience physical and emotional pain and suffering.

      On 13 April 2017, Mrs. Fairfield and her husband filed a complaint in Wake

County Superior Court naming as defendants WakeMed; Marsha M. Smith, M.D.;

Benjamin German, M.D.; Chudaratna Bhargava, M.D.; and John and Jane Doe




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                                       Opinion of the Court



Medical Staff.1 In their complaint, Plaintiffs alleged claims for medical malpractice,

negligent infliction of emotional distress, and loss of consortium. All of these claims

were alleged to have arisen out of defendants’ medical negligence in treating Mrs.

Fairfield.

       The Complaint contained the following provision:

                                 RULE 9(j) CERTIFICATION

               Counsel for the Plaintiffs hereby certify and affirm, that
               prior to the filing [sic] this lawsuit, pursuant to Rule 9 (j)
               of the North Carolina Rules of Civil Procedure, that certain
               medical records and the medical care received by Mrs.
               Fairfield has been reviewed by a physician 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 standard of care provided by
               Defendants did not comply with the applicable standard of
               care.

(Emphasis added.)

       All of the Defendants filed timely answers and motions to dismiss pursuant to

Rule 12(b)(6). On 9 November 2017, a hearing on Defendants’ motions was held

before the Honorable W.O. Smith, III, in Wake County Superior Court.                        On 16

November 2017, the trial court entered an order dismissing this action based on its

determination that Plaintiffs had failed to comply with Rule 9(j). Plaintiffs filed a

timely notice of appeal.


       1Plaintiffs subsequently took a voluntary dismissal of their claims against Dr. Bhargava, Dr.
German, and John and Jane Doe Medical Staff. Therefore, WakeMed and Dr. Smith are the only
remaining defendants.

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                                    Opinion of the Court



                                        Analysis

I.   Rule 9(j)

      In this appeal, Plaintiffs contend that the trial court erred in determining that

their complaint was not in compliance with Rule 9(j).

             The standard of review of an order granting a Rule 12(b)(6)
             motion is whether the complaint states a claim for which
             relief can be granted under some legal theory when the
             complaint is liberally construed and all the allegations
             included therein are taken as true. On appeal, we review
             the pleadings de novo to determine their legal sufficiency
             and to determine whether the trial court’s ruling on the
             motion to dismiss was correct.

Feltman v. City of Wilson, 238 N.C. App. 246, 251, 767 S.E.2d 615, 619 (2014).

      “Dismissal is proper when one of the following three conditions is satisfied: (1)

the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the

complaint on its face reveals the absence of facts sufficient to make a good claim; or

(3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.”

Podrebarac v. Horack, Talley, Pharr, & Lowndes, P.A., 231 N.C. App. 70, 74, 752

S.E.2d 661, 663 (2013) (citation omitted).

      A plaintiff’s pleading in a medical malpractice action, however, “must meet a

higher standard than generally required to survive a motion to dismiss . . . . [T]he

requirements of Rule 9(j) must be met in the complaint in order to survive a motion

to dismiss.” Alston v. Hueske, 244 N.C. App. 546, 551-52, 781 S.E.2d 305, 309 (2016).

Rule 9(j) states, in pertinent part, as follows:


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                                  Opinion of the Court



             (j) Medical malpractice. — Any complaint alleging medical
             malpractice by a health care provider . . . 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. R. Civ. P. 9(j) (emphasis added).

      Our Supreme Court has explained that Rule 9(j) was intended to serve “as a

gatekeeper, enacted by the legislature, to prevent frivolous malpractice claims by

requiring expert review before filing of the action.” Moore v. Proper, 366 N.C. 25, 31,

726 S.E.2d 812, 817 (2012). Our courts have strictly enforced Rule 9(j)’s “clear and

unambiguous” language as requiring dismissal of a medical malpractice action when

the plaintiff’s pleading is not in compliance with the Rule’s requirements. Thigpen v.

Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002) (citation and quotation marks

omitted). See id. (“[M]edical malpractice complaints have a distinct requirement of

expert certification with which the plaintiffs must comply. Such complaints will

receive strict consideration by the trial judge. Failure to include the certification

leads to dismissal.”).




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                                   Opinion of the Court



      Here, the Rule 9(j) certification in Plaintiffs’ complaint merely asserted that

“certain” of Mrs. Fairfield’s medical records had been reviewed by a physician who

was expected to provide expert testimony that Defendants’ treatment of her fell below

the applicable standard of medical care.        However, as quoted above, the plain

language of Rule 9(j) requires that a plaintiff’s pleading in a medical malpractice

action contain an explicit certification that “all” medical records pertaining to the

allegedly negligent acts have been reviewed.

      We find instructive our Court’s decision in Alston in which we similarly

addressed a litigant’s failure to strictly comply with the requirements of Rule 9(j). In

Alston, the plaintiff brought a medical malpractice action arising from the death of

the decedent during a surgical procedure. Alston, 244 N.C. App. at 547-48, 781 S.E.2d

at 307. In an attempt to comply with Rule 9(j), the complaint alleged the following:

                    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 plaintiff by the
             defendant(s) did not comply with the applicable standard
             of care.

Id. at 548, 781 S.E.2d at 307.



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                                  Opinion of the Court



      The trial court granted the defendants’ motion to dismiss on the ground that

the Rule 9(j) certification was defective. We affirmed the court’s order and stated the

following in explaining our ruling:

                   The wording of the complaint renders compliance
             with 9(j) problematic. A plaintiff can avoid this result by
             using the statutory language. 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 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.

                     This omission in the complaint unnecessarily raises
             questions about . . . the witness being “reasonably
             expected” to qualify as an expert under Rule 702. The only
             information we have is that the witness is “Board
             Certified.” We do not know whether the witness is a
             certified doctor or nurse, or even another health care
             professional. We also cannot say whether the “Board
             Certified” person is of the same or similar specialty as
             would be required to testify [that] Hueske violated a
             standard of care. Simply put, we do not have enough
             information to evaluate whether this witness could
             reasonably be expected to qualify as an expert in this case.

                    The legislature passed Rule 9(j) to require a more
             stringent procedure to file a medical malpractice claim.
             Although pleadings are generally construed liberally,
             legislative intent as well as the strict interpretation given


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                                FAIRFIELD V. WAKEMED

                                    Opinion of the Court



             to Rule 9(j) by the North Carolina Supreme Court require
             us to find the wording of this complaint insufficient to meet
             the high standard of Rule 9(j).

Id. at 552-53, 781 S.E.2d at 310.

      Thus, Alston demonstrates the degree to which North Carolina courts have

strictly enforced the provisions of Rule 9(j).       Although the specific reason that

Plaintiffs’ complaint fails to fully comply with Rule 9(j) in the present case is distinct

from that existing in Alston, we are nevertheless compelled to reach the same result.

Here, Plaintiffs’ use of the word “certain” instead of “all” in their complaint with

regard to those medical records actually reviewed by their proposed expert witness

constitutes a failure to adhere to Rule 9(j)’s specific requirements. Based on the

unambiguous language of the Rule, all of the relevant medical records reasonably

available to a plaintiff in a medical malpractice action must be reviewed by the

plaintiff’s anticipated expert witness prior to the filing of the lawsuit, and a

certification of compliance with this requirement must be explicitly set out in the

complaint.

      Allowing a plaintiff’s expert witness to selectively review a mere portion of the

relevant medical records would run afoul of the General Assembly’s clearly expressed

mandate that the records be reviewed in their totality. Rule 9(j) simply does not

permit a case-by-case approach that is dependent on the discretion of the plaintiff’s

attorney or her proposed expert witness as to which of the available records falling



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                                     Opinion of the Court



within the ambit of the Rule are most relevant.             Instead, Rule 9(j) requires a

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

available to the plaintiff after reasonable inquiry” have been reviewed before suit was

filed. See N.C. R. Civ. P. 9(j).

          The certification here simply did not conform to this requirement. Therefore,

the trial court properly ruled that Plaintiffs had failed to comply with Rule 9(j). See

Fintchre v. Duke Univ., 241 N.C. App. 232, 242, 773 S.E.2d 318, 325 (2015) (affirming

trial court’s dismissal of medical malpractice complaint for noncompliance with Rule

9(j)).

II.      Due Process

          Plaintiffs also contend that the application of Rule 9(j) in this case violates

their due process rights. As an initial matter, however, Plaintiffs do not cite any legal

authority in support of this argument as required by the North Carolina Rules of

Appellate Procedure. See N.C. R. App. P. 28(b)(6) (“The body of the argument and

the statement of applicable standard(s) of review shall contain citations of the

authorities upon which the appellant relies.”). Therefore, we deem this issue to be

abandoned.

          Plaintiffs’ constitutional argument fails substantively as well. Rather than

providing an actual explanation as to how Rule 9(j) violates their due process rights,

they instead candidly concede that “the argument that the Plaintiff[s] now make is



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                                   Opinion of the Court



one asking and recommending of [sic] this Court that the law (i.e., language of Rule

9(j)) requires changing in order to do equity and justice.”

      It is axiomatic that such a request for us to rewrite a statute is antithetical to

the proper role of a court in our system of government. As our Supreme Court stated

more than fifty years ago:

             When a court, in effect, constitutes itself a superlegislative
             body, and attempts to rewrite the law according to its
             predilections and notions of enlightened legislation, it
             destroys the separation of powers and thereby upsets the
             delicate system of checks and balances which has
             heretofore formed the keystone of our constitutional
             government.

State v. Cobb, 262 N.C. 262, 266, 136 S.E. 674, 677 (1964).

      We are not unmindful of the harsh outcomes that can result from the

application of Rule 9(j). However, based on the clear language employed by the

General Assembly and the prior caselaw from our appellate courts that we are bound

to follow, we must interpret Rule 9(j) as it is written. Any modification of the pleading

requirements contained therein must come from the legislative branch rather than

the judicial branch. See In re J.M.D., 210 N.C. App. 420, 427, 708 S.E.2d 167, 172

(2011) (“[N]either we nor the trial court can re-write the statute which the General

Assembly has given us.”).

                                     Conclusion




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                               FAIRFIELD V. WAKEMED

                                  Opinion of the Court



         For the reasons stated above, we affirm the trial court’s 16 November 2017

order.

         AFFIRMED.

         Judges ELMORE and DILLON concur.




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