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stating that "the doctrine of res ipsa loquitur in medical malpractice cases has generally been limited to injuries resulting from surgical instruments or other foreign objects left in the body following surgery and injuries to a part of the patient's anatomy outside of the surgical field."
Summary of this case from Earl v. United StatesOpinion
No. 07-834.
Filed March 18, 2008.
Durham County No. 06CVS5674.
Appeal by plaintiff from order entered 21 March 2007 by Judge Donald W. Stephens in Superior Court, Durham County. Heard in the Court of Appeals 5 February 2008.
Judy V. Cartrette, pro se, plaintiff-appellant. Yates, McLamb Weyher, L.L.P., by Dan J. McLamb, for defendants-appellees.
According to North Carolina law, a motion or pleading filed in violation of North Carolina Rule of Civil Procedure 11(a) is a "sham and false and . . . should be stricken and treated as if it had never been filed." Here, Plaintiff Judy Vickhouse Cartrette obtained an extension of time to have her complaint for medical malpractice certified by a medical expert, in accordance with North Carolina Rule of Civil Procedure 9(j). However, Ms. Cartrette failed to make any showing that she used the extension of time for the approved purpose. As such, her motion was properly treated as void by the trial court, and we find no error in the dismissal of her complaint as untimely filed beyond the applicable three-year statute of limitations.
Estrada v. Burnham, 316 N.C. 318, 325, 341 S.E.2d 538, 543 (1986), superseded by statute on other grounds as stated in Turner v. Duke Univ., 325 N.C. 152, 381 S.E.2d 706 (1989).
On 18 September 2003, Ms. Cartrette underwent surgery for a right vertebral artery dissection, performed by Dr. Allan Friedman at the Duke University Medical Center (DUMC). According to Ms. Cartrette, Dr. Friedman initially operated on the left side of her brain, before realizing the mistake and then dissecting the right vertebral artery. Dr. Friedman's operative notes following the surgery reference the possibility that "the x-rays were not labeled correctly" but also state that the proper dissection was performed and that Ms. Cartrette "left the operating room in satisfactory condition." However, Ms. Cartrette claims to have ongoing headaches and pain on the left side of her head due to Dr. Friedman's alleged mistake.
Ms. Cartrette requested, and on 13 September 2006 was granted, an extension of the statute of limitations until 15 January 2007 to file her medical malpractice claim against Dr. Friedman, DUMC, Duke University Health System, Inc., John Doe, and Mary Doe. In her motion, she attributed the need for the extension to her "difficulty in obtaining follow up care, the debilitating nature of her injuries, and a recent death in the family[.]" Ms. Cartrette specifically requested the additional time because she had "been unable to have the record reviewed by an expert witness who she reasonable [sic] anticipates will qualify in accordance with applicable law of North Carolina" to get the necessary medical expert certification for a medical malpractice claim, pursuant to North Carolina Rule of Civil Procedure 9(j).
However, when Ms. Cartrette filed her complaint on 8 January 2007, she had no Rule 9(j) certification. Instead, she proceeded under a theory of res ipsa loquitur "in lieu of alleging that she has previously consulted with a medical specialist of the same or similar profession as Dr. Allan H. Friedman as a pre-condition to filing this complaint." On 11 January 2007, Ms. Cartrette amended her complaint to add Private Diagnostic Clinic, PLLC, as a defendant.
On 21 March 2007, the trial court entered an order granting Defendants' motion to dismiss Ms. Cartrette's complaint alleging medical malpractice. In its order, the trial court found that Ms. Cartrette "relied upon the doctrine of res ipsa loquitur in lieu of alleging that she had previously consulted with a medical specialist." The trial court further found that Ms. Cartrette's motion for an extension of time "was not allowed for the purpose of filing a claim solely alleging res ipsa loquitur and therefore the motion is hereby void and should be treated as if it was never filed." Based on those findings, the trial court dismissed Ms. Cartrette's complaint as untimely filed after the three-year statute of limitations had expired and, alternatively, on the grounds that "the Complaint on its face is inadequate to state a claim for res ipsa loquitur[.]" Ms. Cartrette, acting pro se, now appeals, arguing that the trial court erred on both grounds. We disagree.
Under longstanding precedent in North Carolina, a pleading or other document filed in violation of Rule 11(a) is a "sham and false and . . . should be stricken and treated as if it had never been filed." Estrada v. Burnham, 316 N.C. 318, 325, 341 S.E.2d 538, 543 (1986), superseded by statute on other grounds as stated in Turner v. Duke Univ., 325 N.C. 152, 381 S.E.2d 706 (1989). North Carolina Rule of Civil Procedure 11(a) provides in pertinent part that every pleading and motion shall be signed by a party who is not represented by an attorney, to certify that the document is "well grounded in fact and is warranted by existing law or a good faith argument for the extension, . . ., and that it is not interposed for any improper purpose, such as . . . to cause unnecessary delay." N.C. Gen. Stat. § 1A-1, Rule 11(a) (2005).
In the instant case, Ms. Cartrette stated in her motion for an extension of time to file her complaint that she had "been unable to have the record reviewed by an expert witness" due to several circumstances, and that the extension was necessary "in order to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure." See id., Rule 9(j) (requiring a complaint for medical malpractice to be reviewed by a person who is reasonably expected to qualify as an expert witness and is willing to testify that the medical care did not comply with the applicable standard of care). However, the complaint that she subsequently filed bases her claim on the doctrine of res ipsa loquitur, "in lieu of alleging that she has previously consulted with a medical specialist of the same or similar profession as Dr. Allan H. Friedman as a pre-condition to filing this complaint." Ms. Cartrette made no argument to the trial court — nor has she presented any evidence to this Court — that she ever made any effort to get the requisite Rule 9(j) certification of her medical malpractice complaint. Rather, the plain meaning of the language in her complaint suggests that she decided not to seek Rule 9(j) certification and instead proceed under a theory of res ipsa loquitur.
As such, the reason for the extension of the three-year statute of limitations granted to Ms. Cartrette was invalid according to her own conduct. If Ms. Cartrette's theory of her claim was always res ipsa loquitur, then she had no need for an extension of the statute of limitations; further, the motion was granted on the basis of allowing time to secure Rule 9(j) certification, not to present a claim based on res ipsa loquitur. Ms. Cartrette's own words in her complaint, namely "in lieu of alleging that she has previously consulted with a medical specialist," reflect that she did not use the extension of time for the purpose for which it had been granted. Thus, we find that the trial court did not err by finding that the motion for an extension was filed in violation of Rule 11(a) and should be treated as void and as if it were never filed.
Ms. Cartrette's complaint was filed on 8 January 2007, more than three years after her 18 September 2003 surgery. Without a valid extension of time, this complaint was not timely filed. See N.C. Gen. Stat. § 1-15(c) (cause of action for malpractice begins to accrue "at the time of the occurrence of the last act of the defendant giving rise to the cause of action); id. § 1-52 (three-year statute of limitations for medical malpractice). This assignment of error is overruled.
We note, too, for the sake of completeness, that even were we to allow Ms. Cartrette's motion for an extension of time to file her complaint, we would likewise affirm the trial court's finding and conclusion that Ms. Cartrette's complaint "on its face is inadequate to state a claim for res ipsa loquitur and should be dismissed[.]" As held by this Court, the doctrine of res ipsa loquitur generally applies in "situations where the facts or circumstances accompanying an injury by their very nature raise a presumption of negligence on the part of [a] defendant." Howie v. Walsh, 168 N.C. App. 694, 698, 609 S.E.2d 249, 251 (2005) (quotation and citation omitted). Thus, the theory is used "when no proof of the cause of an injury is available, the instrument involved in the injury is in the exclusive control of [a] defendant, and the injury is of a type that would not normally occur in the absence of negligence." Id. (quotation and citation omitted).
However, for such a claim to succeed, a plaintiff must be able to show that a defendant's negligent act caused the plaintiff's injury and, "without the assistance of expert testimony," that the injury "was of a type not typically occurring in absence of some negligence by defendant." Id., 609 S.E.2d at 252 (quotation and citation omitted). Moreover, a res ipsa loquitur claim requires that the average juror be able to infer negligence from the mere occurrence of the accident itself based only on the juror's common knowledge or experience. Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362 (2000).
As such, this Court has determined that the doctrine should be applied "somewhat restrictive[ly]" in medical malpractice cases, since the "average juror [is] unfit to determine whether [a] plaintiff's injury would rarely occur in the absence of negligence[.]" Howie, 168 N.C. App. at 698, 609 S.E.2d at 251 (quotation and citation omitted). These cases are usually unique in their need for expert testimony because "(1) most medical treatment involves inherent risks despite adherence to the appropriate standard of care and (2) [of] the scientific and technical nature of medical treatment." Id. (quotation and citation omitted). Thus, the doctrine of res ipsa loquitur in medical malpractice cases has generally been limited to "injuries resulting from surgical instruments or other foreign objects left in the body following surgery and injuries to a part of the patient's anatomy outside of the surgical field." Grigg v. Lester, 102 N.C. App. 332, 335, 401 S.E.2d 657, 659, disc. review denied, 329 N.C. 788, 408 S.E.2d 520 (1991).
Ms. Cartrette's complaint involves neither of these situations; although she states that Dr. Friedman operated on the wrong side of her head, the surgical notes make clear that he did repair the proper artery, and a layperson would have no common knowledge or experience to determine that Dr. Friedman or any of the other defendants was negligent in the way a complicated, technical neurosurgery was initiated, performed, or completed. Likewise, a juror without specialized training, skill, or expertise in neurosurgery would have no means of determining whether Ms. Cartrette's headaches and pain are injuries resulting from the defendants' negligence or are simple or common side effects from invasive brain surgery. Accordingly, her claim is inappropriate for the doctrine of res ipsa loquitur.
Affirmed.
Judges McGEE and CALABRIA concur.
Report per Rule 30(e).