{
  "id": 9186726,
  "name": "CHERYL S. BASS, Plaintiff v. DURHAM COUNTY HOSPITAL CORPORATION and REBECCA S. RICH, M.D., Defendants",
  "name_abbreviation": "Bass v. Durham County Hospital Corp.",
  "decision_date": "2003-06-03",
  "docket_number": "No. COA02-841",
  "first_page": "217",
  "last_page": "225",
  "citations": [
    {
      "type": "official",
      "cite": "158 N.C. App. 217"
    }
  ],
  "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": "760 F.2d 14",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        23184
      ],
      "year": 1985,
      "opinion_index": 0,
      "case_paths": [
        "/f2d/760/0014-01"
      ]
    },
    {
      "cite": "528 S.E.2d 570",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "opinion_index": 0
    },
    {
      "cite": "572 S.E.2d 426",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2002,
      "opinion_index": 0
    },
    {
      "cite": "356 N.C. 433",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        1511546,
        1511149,
        1511534,
        1511543
      ],
      "year": 2002,
      "opinion_index": 0,
      "case_paths": [
        "/nc/356/0433-01",
        "/nc/356/0433-03",
        "/nc/356/0433-04",
        "/nc/356/0433-02"
      ]
    },
    {
      "cite": "556 S.E.2d 629",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "opinion_index": 0
    },
    {
      "cite": "147 N.C. App. 628",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        9380867
      ],
      "year": 2001,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/147/0628-01"
      ]
    },
    {
      "cite": "572 S.E.2d 101",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2002,
      "opinion_index": 0
    },
    {
      "cite": "356 N.C. 415",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        1511250
      ],
      "year": 2002,
      "opinion_index": 0,
      "case_paths": [
        "/nc/356/0415-01"
      ]
    },
    {
      "cite": "553 S.E.2d 63",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "opinion_index": 0
    },
    {
      "cite": "146 N.C. App. 339",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11357286
      ],
      "year": 2001,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/146/0339-01"
      ]
    },
    {
      "cite": "573 S.E.2d 125",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2002,
      "pin_cites": [
        {
          "page": "131"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "356 N.C. 582",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        1511484
      ],
      "year": 2002,
      "pin_cites": [
        {
          "page": "590"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/356/0582-01"
      ]
    },
    {
      "cite": "558 S.E.2d 162",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2002,
      "opinion_index": 0
    },
    {
      "cite": "355 N.C. 198",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        220102
      ],
      "year": 2002,
      "opinion_index": 0,
      "case_paths": [
        "/nc/355/0198-01"
      ]
    },
    {
      "cite": "528 S.E.2d 568",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2000,
      "opinion_index": 0
    },
    {
      "cite": "351 N.C. 589",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        1155921
      ],
      "weight": 2,
      "year": 2000,
      "pin_cites": [
        {
          "page": "597"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/351/0589-01"
      ]
    },
    {
      "cite": "245 S.E.2d 105",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1978,
      "opinion_index": 0
    },
    {
      "cite": "37 N.C. App. 36",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8550226
      ],
      "year": 1978,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/37/0036-01"
      ]
    },
    {
      "cite": "538 S.E.2d 569",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 2000,
      "opinion_index": 0
    },
    {
      "cite": "353 N.C. 257",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        135606
      ],
      "year": 2000,
      "opinion_index": 0,
      "case_paths": [
        "/nc/353/0257-01"
      ]
    },
    {
      "cite": "528 S.E.2d 372",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2000,
      "opinion_index": 0
    },
    {
      "cite": "137 N.C. App. 192",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11092695
      ],
      "year": 2000,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/137/0192-01"
      ]
    },
    {
      "cite": "554 S.E.2d 340",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "pin_cites": [
        {
          "parenthetical": "citing Cash v. State Farm Mut. Auto Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, aff'd, 353 N.C. 257, 538 S.E.2d 569 (2000)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "354 N.C. 219",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        138531,
        138505,
        138350,
        138362,
        138367
      ],
      "year": 2001,
      "pin_cites": [
        {
          "parenthetical": "citing Cash v. State Farm Mut. Auto Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, aff'd, 353 N.C. 257, 538 S.E.2d 569 (2000)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/354/0219-04",
        "/nc/354/0219-03",
        "/nc/354/0219-05",
        "/nc/354/0219-01",
        "/nc/354/0219-02"
      ]
    },
    {
      "cite": "548 S.E.2d 183",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "pin_cites": [
        {
          "parenthetical": "citing Cash v. State Farm Mut. Auto Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, aff'd, 353 N.C. 257, 538 S.E.2d 569 (2000)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "144 N.C. App. 119",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        11433101
      ],
      "year": 2001,
      "pin_cites": [
        {
          "parenthetical": "citing Cash v. State Farm Mut. Auto Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, aff'd, 353 N.C. 257, 538 S.E.2d 569 (2000)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/144/0119-01"
      ]
    },
    {
      "cite": "79 N.C. L. Rev. 855",
      "category": "journals:journal",
      "reporter": "N.C. L. Rev.",
      "year": 2001,
      "pin_cites": [
        {
          "page": "867-70",
          "parenthetical": "discussing the practical effects of Brisson including (1) curtailment of Rule 9(j) as a prerequisite to filing a medical malpractice action, (2) extension of the statute of limitations, and (3) reduction of the judicial control of trial judges"
        }
      ],
      "opinion_index": 1
    },
    {
      "cite": "558 S.E.2d 162",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 15,
      "year": 2002,
      "pin_cites": [
        {
          "page": "205"
        },
        {
          "page": "167",
          "parenthetical": "emphasis supplied"
        },
        {
          "page": "167"
        },
        {
          "page": "165"
        },
        {
          "page": "205"
        },
        {
          "page": "167"
        },
        {
          "page": "201"
        },
        {
          "page": "164-65"
        }
      ],
      "opinion_index": 1
    },
    {
      "cite": "355 N.C. 198",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        220102
      ],
      "weight": 5,
      "year": 2002,
      "pin_cites": [
        {
          "page": "205"
        },
        {
          "page": "201"
        },
        {
          "page": "203"
        }
      ],
      "opinion_index": 1,
      "case_paths": [
        "/nc/355/0198-01"
      ]
    },
    {
      "cite": "528 S.E.2d 568",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 2000,
      "opinion_index": 1
    },
    {
      "cite": "351 N.C. 589",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        1155921
      ],
      "weight": 6,
      "year": 2000,
      "pin_cites": [
        {
          "page": "593"
        },
        {
          "page": "600"
        },
        {
          "page": "591-92"
        },
        {
          "page": "595"
        }
      ],
      "opinion_index": 1,
      "case_paths": [
        "/nc/351/0589-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 751,
    "char_count": 19781,
    "ocr_confidence": 0.761,
    "pagerank": {
      "raw": 3.221705112699271e-07,
      "percentile": 0.867156347725292
    },
    "sha256": "25c3d04d513172c17a60b21972394ad66aec40c153ddcf26327c695c560e661a",
    "simhash": "1:7a71476b2407265e",
    "word_count": 3252
  },
  "last_updated": "2023-07-14T17:16:33.883812+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judge WYNN concurs.",
      "Judge Tyson dissents."
    ],
    "parties": [
      "CHERYL S. BASS, Plaintiff v. DURHAM COUNTY HOSPITAL CORPORATION and REBECCA S. RICH, M.D., Defendants"
    ],
    "opinions": [
      {
        "text": "STEELMAN, Judge.\nPlaintiff, Cheryl S. Bass, appeals an order of the trial court dismissing her negligence claims with prejudice and an order denying her motion to set aside the dismissal under Rule 60(b). For the reasons discussed herein, we reverse and remand.\nOn 2 December 1999, plaintiff filed a complaint alleging that she was injured as a result of medical negligence on the part of defendants Dr. Rebecca S. Rich and Durham County Hospital Corporation. The alleged injury occurred on 3 August 1996. Plaintiff further alleged that she suffers from reflex sympathetic dystrophy in her right arm resulting from the improper insertion of an intravenous line during her treatment.\nPlaintiff\u2019s original complaint was filed on the last day of a 120-day extension granted pursuant to Rule 9(j) of the North Carolina Rules of Civil Procedure. The complaint did not contain a certification that plaintiff had a medical expert who: (a) was reasonably expected to qualify as an expert; (b) had reviewed plaintiff\u2019s medical care; and (c) was willing to testify that the medical care plaintiff received did not comply with the applicable standard of care, as required by Rule 9(j). On 13 December 1999, plaintiff filed an amended complaint under Rule 15(a) prior to the service of a responsive pleading. The amended complaint contained the certification required by Rule 9(j).\nOn 3 January 2000, Rich filed an answer, a motion for judgment on the pleadings, and a motion for summary judgment. These motions contended that plaintiff\u2019s claims were barred by the statute of limitations. The hospital answered on 20 January 2000 and filed a Rule 12(b)(6) motion to dismiss. On 24 May 2000, Judge Donald W. Stephens denied each of Rich\u2019s motions and held that plaintiff\u2019s amended complaint containing the Rule 9(j) certification related back to the 2 December 1999 filing of the original complaint. On 29 May 2001, plaintiff voluntarily dismissed her claims without prejudice pursuant to Rule 41(a) of the North Carolina Rules of Civil Procedure.\nPlaintiff re-filed her complaint, which included a Rule 9(j) certification, on 12 June 2001. On 20 July 2001, Rich filed an answer and moved for judgment on the pleadings asserting that: (1) the original complaint was filed more than three years after the alleged events that gave rise to the suit; (2) the complaint failed to state a claim upon which relief could be granted; and (3) plaintiff did not comply with Rule 9(j). The hospital filed a similar motion for judgment on the pleadings on 10 August 2001.\nDefendants\u2019 motions were heard and granted by Judge Narley L. Cashwell. An order was entered dismissing plaintiff\u2019s complaint with prejudice. Plaintiff filed a notice of appeal on 28 November 2001. On 20 February 2002, plaintiff filed a Rule 60(b) motion to set aside the prior order of dismissal. On 10 May 2002, plaintiff\u2019s motion was denied by Judge Henry P. Hight, Jr. On 23 May 2002, plaintiff filed a notice of appeal from the denial of the motion to set aside.\nIn her first assignment of error, plaintiff argues the trial court erred in granting defendants\u2019 motions for judgment on the pleadings. We agree.\nA motion for judgment on the pleadings pursuant to Rule 12(c) should be granted when all material questions of fact are resolved in the pleadings, and only issues of law remain. Mabrey v. Smith, 144 N.C. App. 119, 548 S.E.2d 183, rev. denied, 354 N.C. 219, 554 S.E.2d 340 (2001) (citing Cash v. State Farm Mut. Auto Ins. Co., 137 N.C. App. 192, 528 S.E.2d 372, aff'd, 353 N.C. 257, 538 S.E.2d 569 (2000)). This motion, disfavored by the courts, liberally construe the pleadings in the light most favorable to the nonmovant. Id. (Citing Pipkin v. Lassiter, 37 N.C. App. 36, 245 S.E.2d 105 (1978)). Therefore, when all factual issues are not resolved by the pleadings, judgment on the pleadings is inappropriate. Id.\nThe fundamental' question in this case is whether the instant action is controlled by Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 528 S.E.2d 568 (2000) or Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002).\nIn Brisson, the plaintiff timely filed a medical negligence complaint which lacked a Rule 9(j) certification. Subsequently, the plaintiff took a voluntary dismissal without prejudice pursuant to Rule 41(a). Upon the re-filing of the complaint, the trial court dismissed the second action because the original complaint did not contain the Rule 9(j) certification and the second complaint was thus filed outside the statute of limitations. The Supreme Court reversed, holding that the lack of the Rule 9(j) certification in the first action was not fatal to the second action.\nIn Thigpen, the plaintiff obtained a 120-day extension under Rule 9(j) in order to comply with the certification requirements. The plaintiff subsequently filed a complaint that did not contain the Rule 9(j) certification and later filed an amended complaint containing the certification. The trial court granted the defendants\u2019 motion to dismiss. Our Supreme Court affirmed, holding that once a plaintiff obtains a 120-day extension under Rule 9(j), the plaintiff cannot thereafter amend the complaint to add a Rule 9(j) certification. The dismissal of the plaintiffs complaint was mandated by Rule 9(j).\nIn the instant case, defendants argue that since plaintiff obtained a 120-day extension under Rule 9(j) in the original action and then filed a complaint without the Rule 9(j) certification, the subsequent action is barred by the statute of limitations. Defendants\u2019 argument requires this Court to look back at the original lawsuit and base its ruling on errors contained in the original complaint, which is contrary to the Supreme Court\u2019s holding in Brisson.\nIn that case, the Supreme Court, in broad and clear terms, affirmed the right of a plaintiff to take a voluntary dismissal under Rule 41(a) and held that the taking of a dismissal would serve to correct defects in the first action.\nThe Rule 41(a) voluntary dismissal \u201chas salvaged more lawsuits than any other procedural device, giving the plaintiff a second chance to present a viable case at trial.\u201d 2 G. Gray Wilson, North Carolina Civil Procedure \u00a7 41-1, at 32 (2d ed. 1995) . . . The purpose of our long-standing rule allowing a plaintiff to take a voluntary dismissal and refile the claim within one year even though the statute of limitations has run subsequent to a plaintiffs filing of the original complaint is to provide a one-time opportunity where the plaintiff, for whatever reason, does not want to continue the suit. The range of reasons clearly includes those circumstances in which the plaintiff fears dismissal of the case for rule violations, shortcomings in the pleadings, evidentiary failures, or any other of the myriad reasons for which the cause of action might fail. The only limitations are that the dismissal not be done in bad faith and that it be done prior to a trial court\u2019s ruling dismissing plaintiffs claim or otherwise ruling against plaintiff at any time prior to plaintiff resting his or her case at trial.\nBrisson, 351 N.C. at 597, 528 S.E.2d at 572-73.\nThe Brisson court further stated that \u201cthe plain language of Rule 90) does not give rise to an interpretation depriving plaintiffs of the one-year extension pursuant to their Rule 41(a) voluntary dismissal merely because they failed to attach a Rule 90) certification to the original complaint.\u201d Id. at 595, 528 S.E.2d at 571. Thus, the subsequent action was not subject to dismissal where a Rule 41(a) voluntary dismissal was taken, and the second complaint contained the Rule 9Q) certification.\nIn the instant case, as in Brisson, plaintiff filed a complaint in the first action which did not contain the mandatory Rule 90) certification. The fact that plaintiff obtained a 120-day extension under Rule 90) prior to filing the first complaint does not deprive her of the right to take a Rule 41(a) dismissal without prejudice.\nDefendants contend that under Thigpen, plaintiff could not amend her complaint to add a Rule 9Q) certification where a 120-day extension had been obtained. However, defendants\u2019 reliance upon Thigpen is misplaced. Thigpen is not a Rule 41(a) case. The Supreme Court in Brisson made it clear that, in the context of a Rule 41(a) voluntary dismissal, motions to amend are irrelevant. It held that \u201c[w]e find that plaintiffs\u2019 motion to amend, which was denied, is neither dis-positive nor relevant to the outcome of this case. Whether the proposed amended complaint related back to and superceded the original complaint has no bearing on this case once plaintiffs took their voluntary dismissal].]\u201d Id. at 593, 528 S.E.2d at 570.\nThe effect of a Rule 41(a) dismissal is to leave the plaintiff exactly as she was before the action was commenced. Defendant is thus \u201cfree from the taint of wrongful accusation or legal detriment,\u201d Augur v. Augur, 356 N.C. 582, 590, 573 S.E.2d 125, 131 (2002), which might have arisen as a result of failing to attach the Rule 9(j) certification to the original complaint.\nThe instant case is a Rule 41(a) case and is thus controlled by Brisson and not by Thigpen. Plaintiff\u2019s original complaint was timely filed. That action was properly dismissed without prejudice and properly re-filed within one year of the dismissal. Plaintiff\u2019s complaint, therefore, is not barred by the statute of limitations.\nBecause we reverse Judge Cashwell\u2019s order dismissing this case, plaintiff\u2019s appeal of Judge Hight\u2019s order is moot.\nAt the time Judge Cashwell granted defendants\u2019 motion for judgment on the pleadings and dismissed plaintiff\u2019s suit, Rule 9Q) had been declared unconstitutional in Anderson v. Assimos, 146 N.C. App. 339, 553 S.E.2d 63 (2001). This holding was expressly vacated by our Supreme Court. Anderson v. Assimos, 356 N.C. 415, 572 S.E.2d 101 (2002).\nDefendant Rich asserts that this Court\u2019s decision in Anderson retroactively extinguished plaintiff\u2019s right to seek a 120-day extension to file her original complaint. However, in Best v. Wayne Mem. Hosp., Inc., 147 N.C. App. 628, 556 S.E.2d 629 (2001), appeal dismissed and disc. rev. denied, 356 N.C. 433, 572 S.E.2d 426 (2002), this Court held that Anderson did not invalidate a 120-day extension granted under Rule 9(j). This assignment of error is without merit.\nRich attempts to cross-assign as error Judge Stephens\u2019s denial of her motions to dismiss and for summary judgment in the original action, which was voluntarily dismissed and which is not before us on appeal. Brisson held that after a plaintiff takes a Rule 41(a) voluntary dismissal, \u201c \u2018there is nothing the defendant can do to fan the ashes of that action into life[,] and the court has no role to play.\u2019 \u201d Id. at 593, 528 S.E.2d 570 (citing Universidad Central Del Caribe, Inc. v. Liaison Comm. on Med. Educ., 760 F.2d 14, 18 n.4 (1st Cir. 1985)). Defendant Rich\u2019s cross-assignment of error as to Judge Stephens\u2019s order in the first lawsuit is thus without merit.\nREVERSED AND REMANDED.\nJudge WYNN concurs.\nJudge Tyson dissents.",
        "type": "majority",
        "author": "STEELMAN, Judge."
      },
      {
        "text": "TYSON, Judge,\ndissenting.\nI respectfully dissent from the majority\u2019s opinion reversing Judge Cashwell\u2019s order. The majority\u2019s opinion relies heavily upon Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 528 S.E.2d 568 (2000) to support its result. The Rule 9(j) 120-day extension that plaintiff at bar obtained and her failure to file a conforming complaint within that time factually and legally distinguishes this case from Brisson. The more recent Supreme Court opinion in Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002), controls the outcome at bar. Judge Cashwell\u2019s dismissal with prejudice of plaintiff\u2019s complaint should be affirmed.\nI. Rule 41(a)\nThe reliance of the majority\u2019s opinion upon and its application of the interpretation of Rule 41(a) in Brisson to the facts at bar is misplaced. Brisson holds that \u201c[t]he effect of a judgment of voluntary dismissal is to leave the plaintiff exactly where he or she was before the action was commenced.\u201d Brisson, 351 N.C. at 593, 528 S.E.2d at 570.\nThe plain language of Rule 41(a) states that \u201c[i]f an action commenced within the time prescribed therefor, or any claim therein, is dismissed without prejudice,\u201d the claimant has one year from the time of the dismissal to bring a new action on that same claim. N.C. Gen. Stat. \u00a7 1A-1, Rule 41(a) (2001) (emphasis supplied). Plaintiff\u2019s original complaint was not \u201ccommenced within the time prescribed therefor\u201d because plaintiff failed to comply with Rule 9(j) until after the original statute of limitations and the 120-day extension had expired. See Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002).\nII. Effect, of Thigpen v. Nao\nOur Supreme Court in Thigpen v. Ngo reviewed the applicability of Rule 9(j) to amendment of complaints. \u201c[W]e hold that once a party receives and exhausts the 120-day extension of time in order to comply with Rule 9(j)\u2019s expert certification requirement, the party cannot amend a medical malpractice complaint to include expert certification.\u201d Id. at 205, 558 S.E.2d at 167 (emphasis supplied). The majority\u2019s opinion would allow plaintiffs amended complaint with the 9(j) certification, filed after the original statute of limitations period and the 120-day extension expired, to relate back and cure the defect. This result is precisely what our Supreme Court held plaintiff could not do. Id.\nRelation back is unavailable where a plaintiff obtained an extension under Rule 9(j) to file the original complaint and failed to comply. Id. Under this rule, plaintiffs complaint was not \u201ccommenced within the time prescribed therefor.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 41(a)(1) (2001). Plaintiff waited nearly the entire original limitations period and until the last day of the Rule 9(j) 120-day extension before filing a complaint that: (1) was facially defective, (2) did not contain the mandatory certification, and (3) could not be properly amended under Rule 15. Thigpen, 355 N.C. at 205, 558 S.E.2d at 167.\nIII. Reconciling Brisson and Thiaven\nThe majority\u2019s opinion reads Brisson to allow plaintiff to voluntarily dismiss without prejudice and refile. See Brisson, 351 N.C. at 600, 528 S.E.2d at 574 (Wainwright J., dissenting) (stating \u201c[t]he majority\u2019s analysis would effectively extend the medical malpractice statute of limitations from three years ... to four years and 120 days.\u201d); See also, John Huske Anderson, Jr., Brisson v. Santoriello and Rule 9(j): A Step Backward in the Pursuit to Prevent Frivolous Medical Malpractice Actions in North Carolina, 79 N.C. L. Rev. 855, 867-70 (2001) (discussing the practical effects of Brisson including (1) curtailment of Rule 9(j) as a prerequisite to filing a medical malpractice action, (2) extension of the statute of limitations, and (3) reduction of the judicial control of trial judges).\nThe facts of Brisson are distinguishable when compared to the case at bar. Unlike plaintiff here, \u201cthe plaintiffs in Brisson did not request the 120-day extension provided by Rule 9(j).\u201d Thigpen, 355 N.C. at 201, 558 S.E.2d at 164 (citing Brisson, 351 N.C. 589, 528 S.E.2d 568). The proposed amended complaint with 9(j) certification in Brisson was filed within 120 days after the statute of limitations expired, and would have been timely filed if plaintiffs had requested and received the 120-day extension. Brisson, 351 N.C. at 591-92, 528 S.E.2d at 569-70.\nThe 120-day extension of the statute of limitations available to medical malpractice plaintiffs by Rule 9(j) is for the purpose of complying with Rule 9(j). N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) (2001). \u201cThe title of Rule 9, \u2018Pleading special matters,\u2019 plainly signals the statute\u2019s tailoring to address distinct situations set out in the statute.\u201d Thigpen, 355 N.C. at 203, 558 S.E.2d at 165. Since relation back is not available through Rule 15(c) of the North Carolina Rules of Civil Procedure to comply with Rule 9(j), plaintiff\u2019s amended complaint did not toll the statute of limitations. Id. at 205, 558 S.E.2d at 167. Plaintiff was not entitled to the one-year extension under Rule 41(a) because her original action was not timely filed.\nRule 9(j) mandates that any complaint which fails to comply with the certification requirement, \u201c \u2018shall be dismissed. \u2019 \u201d Id. at 201, 558 S.E.2d at 164-65 (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j)). Thigpen reasons that although the plaintiffs in Brisson voluntarily dismissed their case without prejudice, a trial judge can dismiss with prejudice where a complaint does not contain the certification required by Rule 9(j) and the statute of limitations has expired. Id. \u201cIn Brisson, we stated \u2018Had the trial court involuntarily dismissed plaintiffs\u2019 motion before plaintiffs had taken the voluntary dismissal, the plaintiffs\u2019 claims set forth in the second complaint would be barred by the statute of limitations.\u2019 \u201d Id. (quoting Brisson, 351 N.C. at 595, 528 S.E.2d at 572) (emphasis in original).\nI would hold that, although plaintiff voluntarily dismissed her initial complaint without prejudice, Judge Cashwell correctly dismissed plaintiff\u2019s second complaint. A Rule 41(a) voluntary dismissal would salvage the action and provide another year for re-filing had plaintiff filed a complaint complying with Rule 9(j) before the limitations period expired. Plaintiff\u2019s complaint was untimely filed beyond the expiration of the applicable statute of limitations and the Rule 9(j) extension. I would affirm Judge Cashwell\u2019s order dismissing plaintiff\u2019s action. I respectfully dissent.",
        "type": "dissent",
        "author": "TYSON, Judge,"
      }
    ],
    "attorneys": [
      "Hollowell, Mitchell, Peacock & Von Hagen, PA, by Joseph T. Copeland and Donald R. Von Hagen, for plaintiff-appellant.",
      "Smith, Anderson, Blount, Dorsett, Mitchell & Jemigan, LLP, by Timothy P. Lehan and Deanna Davis Anderson, for defendant-appellee Durham County Hospital Corporation.",
      "Patterson, Dilthey, Clay & Bryson, LLP, by E.C. Bryson, Jr., Christopher J. Derrenbacher and Heather R. Waddell, for defendant-appellee Rebecca S. Rich, M.D."
    ],
    "corrections": "",
    "head_matter": "CHERYL S. BASS, Plaintiff v. DURHAM COUNTY HOSPITAL CORPORATION and REBECCA S. RICH, M.D., Defendants\nNo. COA02-841\n(Filed 3 June 2003)\n1. Medical Malpractice\u2014 Rule 9(j) certification \u2014 voluntary dismissal without prejudice\nThe trial court erred in a medical negligence case by granting defendants\u2019 motions for judgment on the pleadings under N.C.G.S. \u00a7 1A-1, Rule 12(c) in an action where an N.C.G.S. \u00a7 1A-1, Rule 41(a) voluntary dismissal was taken and the second complaint contained the necessary N.C.G.S. \u00a7 1A-1, Rule 9(j) certification, because: (1) the fact that plaintiff obtained a 120-day extension under Rule 9(j) prior to filing the first complaint does not deprive her of the right to take a Rule 41(a) dismissal without prejudice; and (2) plaintiffs original complaint was timely filed, and the action was properly dismissed without prejudice and refiled within one year of the dismissal.\n2. Civil Procedure\u2014 Rule 60(b) motion \u2014 mootness\nPlaintiff\u2019s appeal in a medical negligence case of an order denying her Rule 60(b) motion to set aside a prior order of dismissal is moot, because the Court of Appeals reversed the prior order dismissing the case.\n3. Appeal and Error\u2014 appealability \u2014 cross-assignment regarding original action voluntarily dismissed\nDefendant doctor\u2019s attempt in a medical negligence case to cross-assign as error the trial court\u2019s denial of her motions to dismiss and for summary judgment in the original action is without merit because the original action was voluntarily dismissed and is not before the Court of Appeals.\nJudge Tyson dissenting.\nAppeal by plaintiff from an order entered 26 October 2001 by Judge Narley L. Cashwell and from an order entered 10 May 2002 by Judge Henry P. Hight, Jr. in Durham County Superior Court. Heard in the Court of Appeals 25 March 2003.\nHollowell, Mitchell, Peacock & Von Hagen, PA, by Joseph T. Copeland and Donald R. Von Hagen, for plaintiff-appellant.\nSmith, Anderson, Blount, Dorsett, Mitchell & Jemigan, LLP, by Timothy P. Lehan and Deanna Davis Anderson, for defendant-appellee Durham County Hospital Corporation.\nPatterson, Dilthey, Clay & Bryson, LLP, by E.C. Bryson, Jr., Christopher J. Derrenbacher and Heather R. Waddell, for defendant-appellee Rebecca S. Rich, M.D."
  },
  "file_name": "0217-01",
  "first_page_order": 247,
  "last_page_order": 255
}
