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.
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.
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 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
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.
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 Memorial Hospital, Incorporated, d/b/a Vidant Medical Center (second complaint). The second complaint asserted Dr. Movahed was negligent in that he
The complaint also included the following Rule 9(j) certificate:
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.
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 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:
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.
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 merit, we first address Plaintiff's challenges to the evidentiary sufficiency of the trial court's factual findings.
"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"
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 at the time of filing[,]" id. at 31, 726 S.E.2d at 817, 366 N.C. 25 (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)).
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
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 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))).
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.
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 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).
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 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
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 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. 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.
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
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)).
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 complaint for substantive Rule 9(j) noncompliance.
The trial court made the following relevant factual findings:
Upon the findings, the trial court made the following relevant legal conclusions:
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 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 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.").
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.
