EMAIL TO A FRIEND COMMENT

 

Dismissal Affirmed; Clerical Error in Pre-Complaint Certification; Anesthesia Negligence


A man suffered a burn on his right foot and was subsequently hospitalized. Three days later he underwent a skin graft to address the burn. This procedure employed the use of a Laryngeal Mask Airway to facilitate his breathing. During the operation, the attending anesthesiologist left the room. The man’s breathing, oxygenation, and ventilation were not documented for three minutes.

 

During this time, the man’s blood pressure and heart rate fell, requiring medical staff to administer medication to increase his blood pressure. When this proved insufficient, medical staff administered CPR. Finally, medical staff inserted an endotracheal tube into his airway. The tube first inserted was not properly inspected and had a leak which required the tube to be exchanged for another.

 

During these events, the man suffered a period of decreased oxygen for approximately fifteen minutes which led to cardiac arrest. Medical staff placed him on a ventilator. Through hospital representatives, the anesthesiologist and nurse relayed to his family that there was a small complication involving an equipment malfunction, but it was detected in time before any harm was done and he would be fine. The day after the surgery, his family was pressured to make a decision, and ultimately decided to remove him from the ventilator. The man died in the hospital.

 

One week before the statute of limitations ran, the administrator for the man’s estate filed an unverified complaint against the anesthesiologist and nurse for medical negligence. The complaint alleged that the anesthesiologist and nurse failed to monitor or document the man’s breathing, oxygenation, and ventilation for three minutes. The complaint stated that, “Prior to commencing this action, the medical records were reviewed and evaluated by a duly Board Certified who opined that the care rendered to Decedent was below the applicable standard of care.” The complaint also stated that, “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.”

 

The anesthesiologist and nurse filed an unverified answer generally denying the allegations in the complaint and moved to dismiss the complaint on the grounds that it did not comply with North Carolina Rule 9(j). Rule 9(j) requires that, prior to filing a complaint, the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry had been reviewed by a licensed health care provider, and if the party is a specialist, the expert must specialize in the same or a similar specialty as the party against whom the testimony is given. The Orange County Superior Court dismissed the complaint without prejudice and denied the estate’s motion to amend the pleadings.

 

The Court of Appeals of North Carolina affirmed. The court held that the wording of the complaint did not comply with Rule 9(j) and the trial court did not err in denying the estate’s motion to amend the pleadings.

 

The wording of the complaint did not comply with Rule 9(j). 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. The court reasoned that the only information it had was that the witness is “Board Certified.” The court could not determine whether the witness is a certified doctor or nurse, or even another health care professional or whether the “Board Certified” person is of the same or similar specialty as would be required to testify. The court concluded that the complaint did not provide enough information to evaluate whether this witness could reasonably be expected to qualify as an expert in this case.

 

The trial court did not err in denying the estate’s motion to amend the pleadings. Rule 9(j) requirements apply prior to the filing of the initial complaint or within 120 days off the filing of the complaint should the plaintiff ask for an extension of time. If a pleader fails to properly plead his or her case in the complaint pursuant to Rule 9(j), the complaint is subject to dismissal without the opportunity for the plaintiff to amend the complaint. The court reasoned that because the estate did not file the complaint with the proper Rule 9(j) certification before the running of the statute of limitation, the complaint could not have been deemed to have commenced within the statute.

 

The Court of Appeals of North Carolina affirmed the trial court’s dismissal of the complaint and denial the estate’s motion to amend the pleadings.

 

See: Alston v. Hueske, 2016 WL 47521 (N.C.App., January 5, 2016) (not designated for publication).

 

See also Medical Law Perspectives, August 2012 Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe 

 

 

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