{ "id": 11357286, "name": "MARGARET WRENN ANDERSON, Plaintiff v. DR. DEAN GEORGE ASSIMOS, M.D., DR. R. LAWRENCE KROOVARD, M.D., DR. MARK R. HESS, M.D., WAKE FOREST UNIVERSITY PHYSICIANS, WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, THE MEDICAL CENTER OF BOWMAN GRAY SCHOOL OF MEDICINE and NORTH CAROLINA BAPTIST HOSPITAL and THE NORTH CAROLINA BAPTIST HOSPITALS, INCORPORATED, Defendants", "name_abbreviation": "Anderson v. Assimos", "decision_date": "2001-10-02", "docket_number": "No. COA00-587", "first_page": "339", "last_page": "350", "citations": [ { "type": "official", "cite": "146 N.C. App. 339" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "505 U.S. 833", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1480969 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "878", "parenthetical": "using \"undue burden\" test to balance constitutional right against state's interest" }, { "page": "715", "parenthetical": "using \"undue burden\" test to balance constitutional right against state's interest" } ], "opinion_index": 0, "case_paths": [ "/us/505/0833-01" ] }, { "cite": "131 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "259 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561287 ], "year": 1963, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0506-01" ] }, { "cite": "370 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "536" } ], "opinion_index": 0 }, { "cite": "322 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2513005 ], "year": 1988, "pin_cites": [ { "page": "671" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0666-01" ] }, { "cite": "98 L. Ed. 2d 406", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1987, "opinion_index": 0 }, { "cite": "484 U.S. 970", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 600992, 599913, 599204, 599758 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/us/484/0970-03", "/us/484/0970-02", "/us/484/0970-01", "/us/484/0970-04" ] }, { "cite": "358 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "22" } ], "opinion_index": 0 }, { "cite": "320 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4730916 ], "year": 1987, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0179-01" ] }, { "cite": "273 S.E.2d 661", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "302 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564177 ], "year": 1981, "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0157-01" ] }, { "cite": "543 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "856" } ], "opinion_index": 0 }, { "cite": "353 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135893 ], "year": 2001, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0281-01" ] }, { "cite": "410 U.S. 113", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957048 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "155", "parenthetical": "regulation limiting fundamental rights can only be justified by a compelling state interest and \"must be narrowly drawn to express only the legitimate state interests at stake\"" }, { "page": "178", "parenthetical": "regulation limiting fundamental rights can only be justified by a compelling state interest and \"must be narrowly drawn to express only the legitimate state interests at stake\"" } ], "opinion_index": 0, "case_paths": [ "/us/410/0113-01" ] }, { "cite": "507 U.S. 292", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6228898 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "302", "parenthetical": "government cannot infringe on fundamental rights \"no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest\"" }, { "page": "16", "parenthetical": "government cannot infringe on fundamental rights \"no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest\"" } ], "opinion_index": 0, "case_paths": [ "/us/507/0292-01" ] }, { "cite": "71 N.C. L. Rev. 1839", "category": "journals:journal", "reporter": "N.C. L. Rev.", "year": 1993, "pin_cites": [ { "page": "1850" } ], "opinion_index": 0 }, { "cite": "522 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "82", "parenthetical": "fundamental rights are those explicitly or implicitly guaranteed by the federal or state constitutions" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241864 ], "year": 1999, "pin_cites": [ { "page": "539", "parenthetical": "fundamental rights are those explicitly or implicitly guaranteed by the federal or state constitutions" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0531-01" ] }, { "cite": "146 L. Ed. 2d 337", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "529 U.S. 1033", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9523972, 9523946, 9524049, 9524114, 9524084, 9524025 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/529/1033-02", "/us/529/1033-01", "/us/529/1033-04", "/us/529/1033-06", "/us/529/1033-05", "/us/529/1033-03" ] }, { "cite": "515 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "693" } ], "opinion_index": 0 }, { "cite": "350 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132176 ], "year": 1999, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0449-01" ] }, { "cite": "401 U.S. 371", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11712525 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "378", "parenthetical": "holding due process prohibits a state from denying, solely because of inability to pay filing fee, access to the courts to individuals who seek judicial dissolution of their marriage" }, { "page": "119", "parenthetical": "holding due process prohibits a state from denying, solely because of inability to pay filing fee, access to the courts to individuals who seek judicial dissolution of their marriage" } ], "opinion_index": 0, "case_paths": [ "/us/401/0371-01" ] }, { "cite": "326 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "372" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 336", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523965 ], "year": 1985, "pin_cites": [ { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0336-01" ] }, { "cite": "293 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568776 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0364-01" ] }, { "cite": "284 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 589", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524260 ], "year": 1981, "pin_cites": [ { "page": "593" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0589-01" ] }, { "cite": "40 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1946, "pin_cites": [ { "page": "694-95" } ], "opinion_index": 0 }, { "cite": "227 N.C. 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621299 ], "year": 1946, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/227/0072-01" ] }, { "cite": "302 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "882" }, { "page": "882" } ], "opinion_index": 0 }, { "cite": "308 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708418 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "444" }, { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0419-01" ] }, { "cite": "47 S.E. 811", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1904, "pin_cites": [ { "page": "812" }, { "page": "814" } ], "opinion_index": 0 }, { "cite": "135 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660525 ], "weight": 2, "year": 1904, "pin_cites": [ { "page": "631" }, { "page": "636-37" } ], "opinion_index": 0, "case_paths": [ "/nc/135/0628-01" ] }, { "cite": "79 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1954, "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "239 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626128 ], "year": 1954, "pin_cites": [ { "page": "169" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0160-01" ] }, { "cite": "536 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "536 S.E.2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "362" }, { "page": "379" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 375", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127594 ], "year": 2000, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0375-01" ] }, { "cite": "529 N.E.2d 258", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 1 }, { "cite": "450 N.W.2d 595", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10599630 ], "year": 1990, "opinion_index": 1, "case_paths": [ "/nw2d/450/0595-01" ] }, { "cite": "807 S.W.2d 503", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9996359 ], "year": 1991, "opinion_index": 1, "case_paths": [ "/sw2d/807/0503-01" ] }, { "cite": "298 S.E.2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "parenthetical": "upholding the constitutionality of the statute of repose (N.C.G.S. \u00a7 1-15(c)) for a medical malpractice action based upon the leaving of a foreign object in a person's body during the performance of professional services" } ], "opinion_index": 1 }, { "cite": "307 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562873 ], "year": 1983, "pin_cites": [ { "parenthetical": "upholding the constitutionality of the statute of repose (N.C.G.S. \u00a7 1-15(c)) for a medical malpractice action based upon the leaving of a foreign object in a person's body during the performance of professional services" } ], "opinion_index": 1, "case_paths": [ "/nc/307/0465-01" ] }, { "cite": "289 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "56 N.C. App. 533", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522427 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc-app/56/0533-01" ] }, { "cite": "306 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "63 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525916 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/nc-app/63/0592-01" ] }, { "cite": "549 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 1 }, { "cite": "353 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135671, 135799 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/353/0533-01", "/nc/353/0533-02" ] }, { "cite": "543 S.E.2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "856" } ], "opinion_index": 1 }, { "cite": "353 N.C. 281", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135893 ], "year": 2001, "pin_cites": [ { "page": "291" } ], "opinion_index": 1, "case_paths": [ "/nc/353/0281-01" ] }, { "cite": "326 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "upholding the constitutionality of N.C.G.S. \u00a7 122-24, which grants personal immunity from certain suits to staff members at state hospitals" } ], "opinion_index": 1 }, { "cite": "73 N.C. App. 336", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523965 ], "year": 1985, "pin_cites": [ { "parenthetical": "upholding the constitutionality of N.C.G.S. \u00a7 122-24, which grants personal immunity from certain suits to staff members at state hospitals" } ], "opinion_index": 1, "case_paths": [ "/nc-app/73/0336-01" ] }, { "cite": "302 S.E.2d 868", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "882" }, { "page": "876" } ], "opinion_index": 1 }, { "cite": "308 N.C. 419", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708418 ], "year": 1983, "pin_cites": [ { "page": "444" } ], "opinion_index": 1, "case_paths": [ "/nc/308/0419-01" ] }, { "cite": "47 S.E. 811", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1904, "pin_cites": [ { "page": "812" } ], "opinion_index": 1 }, { "cite": "135 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660525 ], "year": 1904, "pin_cites": [ { "page": "631" } ], "opinion_index": 1, "case_paths": [ "/nc/135/0628-01" ] } ], "analysis": { "cardinality": 1166, "char_count": 29390, "ocr_confidence": 0.776, "pagerank": { "raw": 5.536941265572434e-07, "percentile": 0.9468343521185985 }, "sha256": "760e5cf4c2fc0f20cd108497f213733bc33ae65c36d111d1bedf55789f61fa4a", "simhash": "1:2cafc3ea18433f51", "word_count": 4801 }, "last_updated": "2023-07-14T17:14:58.205856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge CAMPBELL concurs in part and dissents in part in a separate opinion." ], "parties": [ "MARGARET WRENN ANDERSON, Plaintiff v. DR. DEAN GEORGE ASSIMOS, M.D., DR. R. LAWRENCE KROOVARD, M.D., DR. MARK R. HESS, M.D., WAKE FOREST UNIVERSITY PHYSICIANS, WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, THE MEDICAL CENTER OF BOWMAN GRAY SCHOOL OF MEDICINE and NORTH CAROLINA BAPTIST HOSPITAL and THE NORTH CAROLINA BAPTIST HOSPITALS, INCORPORATED, Defendants" ], "opinions": [ { "text": "GREENE, Judge.\nMargaret Wrenn Anderson (Plaintiff} appeals an order filed 14 December 1999 granting the motion of Dr. Dean George Assimos (Dr. Assimos), Dr. R. Lawrence Kroovard, Dr. Mark R. Hess, Wake Forest University Physicians, Wake Forest University Baptist Medical Center, The Medical Center of Bowman Gray School of Medicine, North Carolina Baptist Hospital, and The North Carolina Baptist Hospitals, Inc. (collectively, Defendants) to dismiss Plaintiff\u2019s complaint.\nPlaintiff filed a complaint on 17 August 1999 alleging medical malpractice on the part of Defendants in their failure \u201cto adequately and properly and fully inform[] her of the risks known to be associated with\u201d the administration of the drug gentamicin, a drug given to Plaintiff during her treatment by Defendants. Plaintiff also alleged res ipsa loquitur in her complaint. On 23 August 1999, Plaintiff filed a motion to \u201cextend the statute of limitations for a period of 120 days to file a complaint in medical malpractice conforming to . .. Rule 9(j) of the Rules of Civil Procedure as [it] relate [s] to medical malpractice actions.\u201d Plaintiff filed her amended complaint on 10 November 1999 detailing the medical treatment provided to her by Defendants and the symptoms she suffered after that treatment. Plaintiff\u2019s amended complaint, in pertinent part, alleged:\n6. . . . [Plaintiff] went to the emergency room at North Carolina Baptist Hospital at the end of August of 1996 for a kidney problem .... [Plaintiff] became a little dizzy in the hospital. When [Plaintiff] came home from the hospital, she started down the hall of her home and staggered. She got worse and became really nauseated . . . and vomited seven or eight times. Her head was dizzy and she felt drunk, her ears felt like she was in.an airplane and they were pushing out. This was the first time that she had this problem with her ears that she can recall. It is also the first time that she had the symptoms of dizziness related to a drunken feeling that she felt when she tried to do anything. Dr. Assimos\u2019 office is located at Baptist Hospital. [Plaintiff] was taken in a [wheelchair] to see Dr. Assimos [who was treating her for a kidney problem] and he told her nothing was wrong with her. . . . She then went to Duke Hospital on her own initiative and saw at least two doctors at Duke Hospital. [Plaintiff] received no medication at Duke Hospital, but Duke Hospital did do some testing. . . . She had to be taken, by her son, to Duke Hospital in a wheelchair because of her inability to walk, due to the dizziness and related problems. ... Dr. Assimos [telephoned Plaintiff] at home, after she came back from Duke Hospital, and Dr. Assimos wanted her to come back to Baptist Hospital. . . . Upon[] Dr. Assimos\u2019 request, she went back to Baptist Hospital and stayed several days in Septemberf] 1996. [Plaintiff] had a lot of tests done, the doctors at Baptist Hospital told her that she had a stroke and that they had found an ulcer. They dismissed her and she went home in September[] 1996. Around the first of October[] 1996, she went to see Dr. Brown at North Carolina Baptist Hospital. ... Dr. Brown put water in [Plaintiff\u2019s] ears and she could not feel the water. Dr. Brown asked [Plaintiff] . . . what medicine she had been given. ... At the time . . . [Plaintiff] saw Dr. Brown, she had already [scheduled] an appointment. . . with Dr. Troost, again at North Carolina Baptist Hospital. After Dr. Troost looked at the results of the testing, he told [Plaintiff] that she had an equilibrium problem and that the drug \u201cgentamicin\u201d had burned out her ear. . . . [Dr. Assimos later telephoned Plaintiff] and he told her that gentamicin caused her problem. . . . [Plaintiff\u2019s kidney was removed and t]he kidney was practically a solid mass, like stone, when removed and was not functional. She still has problems with equilibrium, nausea and dizziness.... Plaintiff alleges that the drug that was administered was known to have a side effect that in fact occurred and had in fact occurred in other patients at the same hospital. [Defendants] failed to warn [Plaintiff] of the side effect. ... [A] monitoring process was available to prevent the potential side effect and . . . [Defendants failed to monitor the drug and [Plaintiff\u2019s] injuries are the result of the drug treatment.\n7. Pursuant to the injuries being caused by the sole acts of [Defendants, Plaintiff] alleges the doctrine of res ipsa loquitur.\n8. Plaintiff contends that there was an injury, and that the occurrence causing the injury is one which ordinarily doesn\u2019t happen without negligence on someone\u2019s part and that the instrumentality which caused the injury was under the exclusive control and management of [Defendants].\nDefendants filed a motion to dismiss Plaintiff\u2019s complaint on 16 November 1999 for Plaintiffs failure to comply with Rule 9(J) of the North Carolina Rules of Civil Procedure. At the hearing on Defendants\u2019 motion, Plaintiff\u2019s attorney stated Plaintiff is \u201can elderly woman, . . . who has a very limited income.\u201d Prior to filing her complaint, Plaintiff attempted to obtain an expert witness to certify her complaint and had sent her medical file to expert witnesses. Plaintiff, however, was unable to obtain an expert witness because Defendants failed to perform a monitoring test and the expert witnesses would have to testify Defendants \u201chad improperly applied the test that they didn\u2019t take.\u201d At the conclusion of the hearing, the trial court allowed Plaintiff\u2019s motion to amend her complaint and also allowed Defendants\u2019 motion to dismiss Plaintiff\u2019s complaint.\nThe issues are whether: (I) Plaintiff alleged facts establishing negligence through res ipsa loquitur, and (II) the pre-filing certification requirement of Rule 9(J) violates Article I, Section 18 of the North Carolina Constitution and the equal protection clauses of the federal and state constitutions.\nI\nPlaintiff argues the trial court erred in dismissing her complaint because her complaint stated a claim for negligence, alleging res ipsa loquitur. We disagree.\nThe doctrine of res ipsa loquitur applies if a plaintiff is able to establish, without the benefit of expert testimony, an injury would not typically occur in the absence of some negligence by the defendant. Diehl v. Koffer, 140 N.C. App. 375, 378, 536 S.E.2d 359, 362 (2000). Specifically, \u201cthe negligence complained of must be of the nature that a jury[,] through common knowledge and experience^] could infer\u201d negligence on the part of the defendant. Id. at 379, 536 S.E.2d 362. If a medical drug is \u201can approved and acceptable treatment and the dosages as prescribed [are] proper, the mere fact that [a plaintiff] had an unfavorable reaction from its use would not make the doctrine of res ipsa loquitur applicable.\u201d Hawkins v. McCain, 239 N.C. 160, 169, 79 S.E.2d 493, 500 (1954).\nIn this case, the side effects of gentamicin and Defendants\u2019 possible failure to monitor those effects on Plaintiff are not areas within a jury\u2019s common knowledge or experience. Thus, Plaintiff needs the benefit of expert testimony to establish the standard of care to be used in the administration of gentamicin and Defendants\u2019 possible breach of this standard of care. See id. Accordingly, the doctrine of res ipsa loquitur did not apply to Plaintiff\u2019s medical malpractice action.\nII\nPlaintiff next argues the trial court erred in dismissing her complaint because Rule 9(j) is unconstitutional in that it unduly restricts her access to the courts and violates the equal protection clause of the state and federal constitutions.\nAccess to the courts\nOur North Carolina Constitution provides that \u201cevery person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial, or delay.\u201d N.C. Const, art. I, \u00a7 18. This section was added to our North Carolina Constitution in 1868 and has its roots in the Magna Carta. John V. Orth, The North Carolina State Constitution 54 (1993). The promise was that \u201c[j]ustice would be available to all who were injured; to this end, the courts would be \u2018open.\u2019 \u201d Id. The General Assembly, therefore, is \u201cclearly forbidden\u201d from enacting any statute that \u201cimpairs\u201d the right of any person to recover for an injury to his person, property, or reputation. Osborn v. Leach, 135 N.C. 628, 631, 47 S.E. 811, 812 (1904). The General Assembly is permitted, under the \u201cdue course of law\u201d language of section 18, to \u201cdefine the circumstances under which a remedy is legally cognizable and those under which it is not.\u201d Lamb v. Wedgewood South Corp., 308 N.C. 419, 444, 302 S.E.2d 868, 882 (1983). Thus, the General Assembly is permitted to abolish or modify a claim if it has not vested, Pinkham v. Unborn Children of Jather Pinkham, 227 N.C. 72, 78, 40 S.E.2d 690, 694-95 (1946), establish a statute of limitations, Bolick v. American Barmag Corp., 54 N.C. App. 589, 593, 284 S.E.2d 188, 191 (1981), modified on other grounds, 306 N.C. 364, 293 S.E.2d 415 (1982), establish a statute of repose, Lamb, 308 N.C. at 444, 302 S.E.2d at 882, or establish limited immunities for some claims, Pangburn v. Saad, 73 N.C. App. 336, 347, 326 S.E.2d 365, 372 (1985). In no event, however, may the General Assembly under the guise of \u201cdue course of law\u201d deny a person, whose claim is not barred by the statutes of limitations/repose, the \u201copportunity to be heard before being deprived of property, liberty[,] or reputation, or having been deprived of either,\u201d deny that person \u201ca like opportunity [for] showing the extent of his injury\u201d or deny that person an adequate remedy. Osborn, 135 N.C. at 636-37, 47 S.E. at 814.\nIn this case, the General Assembly has placed a restriction on a party\u2019s right to file a malpractice claim against a \u201chealth care provider.\u201d N.C.G.S. \u00a7 1A-1, Rule 9(j) (1999). That restriction requires the party\u2019s pleading to certify, in her complaint, that the medical care has been \u201creviewed 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.\u201d N.C.G.S. \u00a7 1A-1, Rule 9(j)(1) (1999). The failure to include this certification in the complaint mandates the dismissal of the complaint. Id. This certification requirement impairs, unduly burdens, and in some instances, where the injured party is unable to timely find an expert or is without funds to employ such an expert or find an attorney who is willing to advance the funds to employ an expert, prohibits the filing of any medical malpractice claim. Even if an expert is obtained, Rule 9(j) places in the hands of that expert the right to decide if the injured party may proceed into court with her claim. It is for the courts of this state to adjudicate in a meaningful time and manner the merits of an injured party\u2019s claim after granting a hearing appropriate to the nature of the case. Because Rule 9(j) denies a plaintiff this right, it violates Article I, Section 18 of the North Carolina Constitution and is therefore void. See Boddie v. Connecticut, 401 U.S. 371, 378, 28 L. Ed. 2d 113, 119 (1971) (holding due process prohibits a state from denying, solely because of inability to pay filing fee, access to the courts to individuals who seek judicial dissolution of their marriage).\nEqual protection\nMoreover, Rule 9(j) classifies malpractice actions into two groups: medical and non-medical. This classification implicates the equal protection clause and thus can be sustained, because it affects a fundamental right (Article I, Section 18 of the North Carolina Constitution), see Virmani v. Presbyterian Health Services Corp., 350 N.C. 449, 476, 515 S.E.2d 675, 693 (1999), cert. denied, 529 U.S. 1033, 146 L. Ed. 2d 337 (2000); see also Comer v. Ammons, 135 N.C. App. 531, 539, 522 S.E.2d 77, 82 (1999) (fundamental rights are those explicitly or implicitly guaranteed by the federal or state constitutions), only if it serves a compelling state interest and the statute is narrowly drawn to promote that interest, \u201cwithout needless overin-clusion or suspicious underinclusion, thereby favoring the use of the least restrictive alternative,\u201d see Louis D. Bilionis, Liberty, the \u201cLaw of the Land,\u201d and Abortion in North Carolina, 71 N.C. L. Rev. 1839, 1850 (1993); see also Reno v. Flores, 507 U.S. 292, 302, 123 L. Ed. 2d. 1, 16 (1993) (government cannot infringe on fundamental rights \u201cno matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest\u201d); Roe v. Wade, 410 U.S. 113, 155, 35 L. Ed. 2d 147, 178 (1973) (regulation limiting fundamental rights can only be justified by a compelling state interest and \u201cmust be narrowly drawn to express only the legitimate state interests at stake\u201d).\nIn this case, the interest asserted by Defendants is that Rule 9(j) prevents frivolous lawsuits. There is nothing in this record to support the claim that frivolous lawsuits were a problem in medical malpractice cases before the enactment of Rule 9(j). Even if we assume it is a problem, there is nothing in this record to support the claim that Rule 9(j) alleviates that problem or that the problem is not also present in the context of non-medical practice actions. In any event, assuming there is such a problem unique to medical malpractice actions, Rule 9(j) is not the least restrictive method for solving the problem. Many states addressing this issue have adopted medical review panels which simply require the claim be reviewed prior to the filing of a medical malpractice action. 1 David W. Louisell and Harold Williams, Medical Malpractice \u00a7 13A (2001). These panels are \u201cseen as a device designed to [weed] out frivolous medical malpractice claims and to encourage timely settlement of meritorious claims.\u201d Id. Failure to settle the claim, however, does not preclude the filing of the claim. Id. Thus, frivolous claims can be discouraged and done so in a manner that does not deny access to the courts. Accordingly, because Rule 9(j) does not reflect the least restrictive method for addressing the asserted state interest, it violates the equal protection clauses of both the federal and state constitutions and is therefore void.\nBecause Rule 9(j) is unconstitutional and therefore void, Plaintiff is not obligated to meet the pleading requirements of Rule 9(j). The dismissal of the action for failure to comply with Rule 9(j) must, therefore, be reversed and the matter remanded to the trial court.\nReversed and remanded.\nJudge McGEE concurs.\nJudge CAMPBELL concurs in part and dissents in part in a separate opinion.\n. A complaint alleging medical malpractice must: (1) specifically assert the complaint has been reviewed by a person \u201cwho is expected to qualify\u201d or who the \u201ccomplainant will seek to have qualified\u201d as an expert witness under Rule 702(e) of the Rules of Evidence; or (2) \u201callege[] facts establishing negligence under the existing common-law doctrine of\u201d res ipsa loquitur. N.C.G.S. \u00a7 1A-1, Rule 9(j) (1999).\n. We note this constitutional question was not raised below at the trial court, although Plaintiff has made it the basis of an assignment of error in the record to this Court. Moreover, both Plaintiff and Defendants fully addressed the constitutional issue, and Defendants did not object to Plaintiff arguing this issue for the first time on appeal. Generally, constitutional questions that were not raised and passed upon by the trial court, will not be considered on appeal. State v. Cummings, 353 N.C. 281, 292, 543 S.E.2d 849, 856 (2001). Nevertheless, pursuant to Rule 2 of the Appellate Rules of Procedure, we elect to address the constitutional question. See State v. Elam, 302 N.C. 157, 161, 273 S.E.2d 661, 664 (1981); see also State v. Brown, 320 N.C. 179, 211, 358 S.E.2d 1, 22, cert. denied, 484 U.S. 970, 98 L. Ed. 2d 406 (1987); State v. Swann, 322 N.C. 666, 671, 370 S.E.2d 533, 536 (1988); Rice v. Rigsby, 259 N.C. 506, 511, 131 S.E.2d 469, 472 (1963).\n. There is no similar requirement for non-medical malpractice claims.\n. \u201cAn undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path\u201d of a party seeking to exercise her constitutional right. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 878, 120 L. Ed. 2d 674, 715 (1992) (using \u201cundue burden\u201d test to balance constitutional right against state\u2019s interest).\n. Because Rule 9(j) is unconstitutional in that it unduly restricts access to the courts and violates the equal protection clause of the state and federal constitutions, we need not address Plaintiffs arguments concerning the constitutionality of the rule based on exclusive emoluments or due process.", "type": "majority", "author": "GREENE, Judge." }, { "text": "CAMPBELL, Judge,\nconcurring in part and dissenting in part.\nI concur with the majority opinion in holding that the doctrine of res ipsa loquitur did not apply to plaintiffs medical malpractice action in that the alleged acts of negligence are not areas within a jury\u2019s common knowledge or experience, and, thus, plaintiff would need the benefit of expert testimony to establish the applicable standard of care and any possible breach of this standard of care by defendants. However, I respectfully dissent from the majority\u2019s holding that the trial court erred in dismissing plaintiff\u2019s complaint because N.C. R. Civ. P. 9(J) (Rule 9(j)) is unconstitutional.\nAs the majority notes, plaintiff filed her original complaint on 17 August 1999, and then, on 23 August 1999, filed a motion pursuant to Rule 9(j)(3) requesting an additional 120 days to file a complaint conforming to Rule 9(j). The record does not indicate whether plaintiff ever brought her motion pursuant to Rule 9(j)(3) on for a hearing, and the trial court did not enter an order extending the statute of limitations. On 10 November 1999, plaintiff filed an amended complaint identical to her original complaint with the exception of a more extensive recitation of factual allegations detailing the medical treatment defendants provided her and the symptoms she suffered after that treatment. The amended complaint did not include the certification requirements of Rule 9(j)(l) or (2), instead stating, as did the original complaint, that it was being brought under the doctrine of res ipsa loquitur under Rule 9(j)(3). Defendants filed a motion to strike the amended complaint and a motion to dismiss pursuant to Rule 9(j) on 16 November 1999. After a hearing, the trial court denied defendants\u2019 motion to strike but allowed defendants\u2019 motion to dismiss for failure to comply with Rule 9(j). Plaintiff gave timely notice of appeal.\nAlthough not raised before and ruled upon by the trial court, plaintiff made constitutional issues the basis of an assignment of error in the record on appeal to this Court. Specifically, plaintiff asserted that the pre-filing certification requirement of Rule 9(j) violates article I, section 18 of the North Carolina Constitution and the equal protection clauses of the federal and state constitutions. In their respective briefs, both parties fully addressed the issue of whether Rule 9(j) unconstitutionally restricts access to the courts in violation of article I, section 18 of the North Carolina Constitution. However, plaintiff did not address the equal protection argument in her brief to this Court. As the majority points out, constitutional questions that were not raised and passed upon by the trial court, generally will not be considered on appeal. State v. Cummings, 353 N.C. 281, 291, 543 S.E.2d 849, 856, reh\u2019g dis\u2019d, 353 N.C. 533, 549 S.E.2d 553 (2001). Further, assignments of error not set out or supported in the appellant\u2019s brief, will be deemed abandoned pursuant to N.C. R. App. P. 28(b)(5). However, the majority has elected to consider the important constitutional issues raised pursuant to this Court\u2019s discretionary authority under N.C. R. App. P. 2. While I do not object to the majority\u2019s election to address these important constitutional issues, I cannot agree with the majority\u2019s conclusion that Rule 9(j) is unconstitutional either under article I, section 18 of the North Carolina Constitution or under the equal protection clauses of the federal and state constitutions.\nAccess to the Courts\nAlthough I wholeheartedly concur with the majority that the courts of this State should be open to all and that the General Assembly is forbidden from impairing the rights guaranteed by article I, section 18 of the North Carolina Constitution, see Osborn v. Leach, 135 N.C. 628, 631, 47 S.E. 811, 812 (1904), our General Assembly is nevertheless permitted, under the \u201cdue course of law\u201d language of article I, section 18, to \u201cdefine the circumstances under which a remedy is legally cognizable and those under which it is not.\u201d Lamb v. Wedgewood South Corp., 308 N.C. 419, 444, 302 S.E.2d 868, 882 (1983). Further, it is well-established that there is a presumption in favor of the constitutionality of any legislative enactment and that reasonable doubts must be resolved in favor of sustaining legislative acts. Id. at 433, 302 S.E.2d at 876. Application of these principles to the instant case leads me to conclude that Rule 9(j) does not unconstitutionally restrict plaintiff\u2019s access to the courts in violation of article I, section 18.\nI disagree with the majority\u2019s conclusion that the pre-filing certification requirement of Rule 9(j) so impairs and unduly burdens the right to file a medical malpractice action that it runs afoul of article I, section 18. Rather, I view Rule 9(j) as a permissible attempt by our General Assembly to define the circumstances under which relief will be available to an injured plaintiff in certain medical malpractice contexts. See Pangburn v. Saad, 73 N.C. App. 336, 326 S.E.2d 365 (1985) (upholding the constitutionality of N.C.G.S. \u00a7 122-24, which grants personal immunity from certain suits to staff members at state hospitals). The majority recognizes that since plaintiff\u2019s complaint does not allege facts that bring it within the doctrine of res ipsa loquitur, plaintiff \u201cneeds the benefit of expert testimony to establish the standard of care to be used with the administration of gentamycin and Defendants\u2019 possible breach of this standard of care.\u201d Thus, it is without contention that plaintiff would ultimately need an expert in order to meet her burden to carry her claim to a jury. To require plaintiff to assert in her pleading that the medical care has been reviewed by a person who is at least presumably qualified and willing to testify for plaintiff, does not in my opinion deny plaintiff the right of access to our courts. Rather, Rule 9(j) is similar to those statutory prohibitions, such as our rules of procedure and statutes of limitations, as well as constitutional provisions such as sovereign immunity, which restrict the ability of plaintiffs to recover for certain injuries, but do not completely deny recovery or abolish common law causes of action, and have consistently been found not to violate article I, section 18 of the North Carolina Constitution. See Dixon v. Peters, 63 N.C. App. 592, 306 S.E.2d 477 (1983).\nEqual Protection\nI likewise dissent from the majority\u2019s conclusion that Rule 9(j) violates the equal protection clauses of the federal and state constitutions. The majority states that Rule 9Q) creates two classes of individuals, those seeking to assert a medical malpractice claim and those seeking to assert a non-medical malpractice claim, and unconstitutionally discriminates against those seeking to assert a medical malpractice claim. While I agree with the majority\u2019s identification of the two classes created by Rule 9(j), I do not agree that Rule 9(j) affects a fundamental right, and is therefore subject to strict scrutiny analysis. Rather, the right arguably being infringed upon by Rule 9(j) is the right to file a medical malpractice claim, which I do not agree rises to the level of a fundamental right. Since no suspect class or fundamental right is involved, Rule 9(j) need only bear a rational relationship to a legitimate government interest in order to comply with equal protection.\nWhile the majority correctly contends that the record contains no support for defendants\u2019 claim that frivolous medical malpractice lawsuits were a problem before the enactment of Rule 9(j), or that Rule 9(j) has alleviated that problem, that is necessarily the case since the constitutionality of Rule 9(j) was not argued in the trial court, and plaintiff did not present any argument in her brief that Rule 9(j) violated equal protection.\nHowever, there is ample judicial authority from which one can conclude that the purpose of Rule 9(j) is to free the courts from frivolous medical malpractice suits at an early state of litigation. Since the early-1970\u2019s, nearly every jurisdiction in the country has responded in some fashion to the perceived medical malpractice insurance crisis, in an attempt to reduce the cost of medical malpractice insurance and insure its continued availability to the providers of health care. In North Carolina, the Report of the North Carolina Professional Liability Insurance Study Commission (1976), analyzed the malpractice crisis in this state, with the Study Commission recommending procedural changes which were subsequently enacted by the legislature. See Roberts v. Durham County Hospital Corp., 56 N.C. App. 533, 289 S.E.2d 875 (1982), aff'd, 307 N.C. 465, 298 S.E.2d 384 (1983) (upholding the constitutionality of the statute of repose (N.C.G.S. \u00a7 1-15(c)) for a medical malpractice action based upon the leaving of a foreign object in a person\u2019s body during the performance of professional services). In the more recent past, nearly every state has passed some form of a remedial measure designed to weed out frivolous medical malpractice claims at an early stage of litigation. As the majority points out, some states have addressed this issue by the adoption of medical review panels which simply require that medical malpractice claims be reviewed prior to being filed. 1 David W. Louisell and Harold Williams, Medical Malpractice \u00a7 13A (2001). Many other states have adopted requirements similar to Rule 9(j), requiring the filing of an affidavit of an expert witness or a summary of the expert\u2019s testimony concerning the merits of the claim. Id. \u00a7 9.07[2], Such statutes have consistently been held to be rationally related to the legitimate state interest of eliminating frivolous medical malpractice suits. See Mahoney v. Doergoff Surgical Servs., 807 S.W.2d 503 (Mo. Sup. Ct. 1991); Henke v. Dunham, 450 N.W.2d 595 (Minn. Ct. App. 1990); Sakovich v. Dodt, 529 N.E.2d 258 (Ill. Ct. App. 1988). I agree with the reasoning of these cases and would hold that Rule 9(j) does not violate equal protection.\nFor the foregoing reasons, I respectfully dissent, and would affirm the order of the trial court.", "type": "concurring-in-part-and-dissenting-in-part", "author": "CAMPBELL, Judge," } ], "attorneys": [ "Mary K. Nicholson for plaintiff-appellant.", "Tuggle, Duggins & Meschan, P.A., by Robert A. Ford and Demetrius L. Worley, for defendant-appellees." ], "corrections": "", "head_matter": "MARGARET WRENN ANDERSON, Plaintiff v. DR. DEAN GEORGE ASSIMOS, M.D., DR. R. LAWRENCE KROOVARD, M.D., DR. MARK R. HESS, M.D., WAKE FOREST UNIVERSITY PHYSICIANS, WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, THE MEDICAL CENTER OF BOWMAN GRAY SCHOOL OF MEDICINE and NORTH CAROLINA BAPTIST HOSPITAL and THE NORTH CAROLINA BAPTIST HOSPITALS, INCORPORATED, Defendants\nNo. COA00-587\n(Filed 2 October 2001)\n1. Medical Malpractice\u2014 negligence \u2014 res ipsa loquitur \u2014 unfavorable reaction to medicine\nThe trial court did not err in a medical malpractice action by granting defendants\u2019 motion to dismiss plaintiff patient\u2019s complaint alleging negligence under the theory of res ipsa loquitur based on plaintiff\u2019s unfavorable reaction to medicine given to plaintiff as part of her treatment, because: (1) the side effects of the medicine and defendants\u2019 possible failure to monitor those effects on plaintiff are not areas within the jury\u2019s common knowledge or experience; and (2) plaintiff needs expert testimony to establish the standard of care to be used in the administration of the medicine and defendants\u2019 possible breach of this standard.\n2. Medical Malpractice\u2014 Rule 9(j) certification \u2014 unduly burdensome requirement \u2014 equal protection violation\u2014 unconstitutional\nThe trial court erred in a medical malpractice action by dismissing plaintiff patient\u2019s complaint based on an alleged failure to comply with N.C.G.S. \u00a7 1A-1, Rule 9(j) certification requirements, because: (1) the certification requirement violates Article I, Section 18 of the North Carolina Constitution since it impairs, unduly burdens, and in some instances prohibits the filing of any medical malpractice claim where the injured party is unable to timely find an expert or is without funds; and (2) the certification requirement violates the equal protection clause of both the state and federal constitutions since it does not reflect the least restrictive method for the asserted state interest of preventing frivolous lawsuits.\nJudge Campbell concurring in part and dissenting in part.\nAppeal by plaintiff from order filed 14 December 1999 by Judge James R. Vosburgh in Guilford County Superior Court. Heard in the Court of Appeals 27 March 2001.\nMary K. Nicholson for plaintiff-appellant.\nTuggle, Duggins & Meschan, P.A., by Robert A. Ford and Demetrius L. Worley, for defendant-appellees." }, "file_name": "0339-01", "first_page_order": 371, "last_page_order": 382 }