{ "id": 8373680, "name": "JANET C. KNOX, Administratrix of the Estate of Toby R. Knox; and JANET C. KNOX, Individually, Plaintiffs v. UNIVERSITY HEALTH SYSTEMS OF EASTERN CAROLINA, INC., PITT COUNTY MEMORIAL HOSPITAL, INCORPORATED; DR. INDIRA MURR; DR. JODY HAIGOOD; DR. KAREN KINNEY; DR. MARK NEWELL; DR. CURTIS BOWER; DR. CHRISTOPHER LOGUE; JOHN DOE; and MARY DOE, Defendants", "name_abbreviation": "Knox v. University Health Systems of Eastern Carolina, Inc.", "decision_date": "2007-11-20", "docket_number": "No. COA07-258", "first_page": "279", "last_page": "285", "citations": [ { "type": "official", "cite": "187 N.C. App. 279" } ], "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": "449 S.E.2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "11", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525352 ], "year": 1994, "pin_cites": [ { "page": "659", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0658-01" ] }, { "cite": "330 S.E.2d 616", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "\"The assignment of error must clearly disclose the question presented.\"" } ], "opinion_index": 0 }, { "cite": "313 N.C. 612", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4722697, 4725936, 4721340, 4722525, 4724158 ], "year": 1985, "pin_cites": [ { "parenthetical": "\"The assignment of error must clearly disclose the question presented.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0612-03", "/nc/313/0612-05", "/nc/313/0612-01", "/nc/313/0612-02", "/nc/313/0612-04" ] }, { "cite": "325 S.E.2d 260", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "266", "parenthetical": "\"The assignment of error must clearly disclose the question presented.\"" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 372", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526819 ], "year": 1985, "pin_cites": [ { "page": "375", "parenthetical": "\"The assignment of error must clearly disclose the question presented.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0372-01" ] }, { "cite": "546 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "353 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135914, 135661, 135986, 135704, 135806 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/nc/353/0262-04", "/nc/353/0262-02", "/nc/353/0262-05", "/nc/353/0262-03", "/nc/353/0262-01" ] }, { "cite": "530 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "101" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 381", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079870 ], "year": 2000, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0381-01" ] }, { "cite": "510 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "348 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659969, 1659875, 1659973, 1659859, 1659866 ], "year": 1998, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0509-01", "/nc/348/0509-04", "/nc/348/0509-05", "/nc/348/0509-03", "/nc/348/0509-02" ] }, { "cite": "497 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "710", "parenthetical": "citation omitted" }, { "page": "710" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11649254 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "239-40", "parenthetical": "citation omitted" }, { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0237-01" ] } ], "analysis": { "cardinality": 578, "char_count": 13986, "ocr_confidence": 0.741, "pagerank": { "raw": 5.5127281562657935e-08, "percentile": 0.34447645403264826 }, "sha256": "36961a9bef1a304dc890a6111d109847fd02c21378689cf844b9f20a85def326", "simhash": "1:172a02e17419a39d", "word_count": 2355 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge ELMORE concur." ], "parties": [ "JANET C. KNOX, Administratrix of the Estate of Toby R. Knox; and JANET C. KNOX, Individually, Plaintiffs v. UNIVERSITY HEALTH SYSTEMS OF EASTERN CAROLINA, INC., PITT COUNTY MEMORIAL HOSPITAL, INCORPORATED; DR. INDIRA MURR; DR. JODY HAIGOOD; DR. KAREN KINNEY; DR. MARK NEWELL; DR. CURTIS BOWER; DR. CHRISTOPHER LOGUE; JOHN DOE; and MARY DOE, Defendants" ], "opinions": [ { "text": "McCullough, Judge.\nAppeal by plaintiff from judgment entered 3 November 2006 by Judge W. Russell Duke, Jr., in Wilson County Superior Court. Heard in the Court of Appeals 15 October 2007.\nFACTS\nThe record on appeal tends to show the following facts: Plaintiffs husband, Toby R. Knox, was injured in a motor vehicle accident on 21 December 2003. Mr. Knox was transported to Wilson Medical Center for treatment of his injuries. Due to the extent of Mr. Knox\u2019s injuries, he was then transferred to the trauma center in Pitt County Memorial Hospital (\u201cHospital\u201d) for further treatment.\nOn 25 December 2003, Mr. Knox\u2019s temperature was recorded at 37.9 degrees Celsius (100.22 degrees Fahrenheit). In response, the examining nurse noted the possibility of an infection and classified Mr. Knox as \u201cat risk.\u201d On 26 December 2003, a nurse observed Mr. Knox had a temperature of 38.8 Celsius degrees (101.84 degrees Fahrenheit), for which he was given 850 milligrams of Tylenol. On 27 December 2003, Mr. Knox\u2019s temperature reached 41.6 degrees Celsius (106.88 degrees Fahrenheit). In an effort to combat Mr. Knox\u2019s rising temperature, he was subsequently given a cooling blanket and 800 milligrams of Motrin. On 28 December 2003, Mr. Knox appeared to be in septic shock. On 29 December 2003, Mr. Knox was pronounced dead.\nOn 17 January 2006, plaintiff filed a complaint for medical malpractice pursuant to North Carolina General Statutes \u00a7 90-21.11, against inter alia University Health Systems of Eastern Carolina, Inc.; Pitt County Memorial Hospital, Incorporated; Dr. Indira Murr; Dr. Jody Haigood; Dr. Karen Kinney; Dr. Mark Newell; Dr. Curtis Bower; and Dr. Christopher Logue. Plaintiff\u2019s complaint alleged the negligence of the foregoing doctors caused Mr. Knox pain and suffering, and ultimately resulted in Mr. Knox\u2019s death. In response to the complaint, Dr. Newell moved for, and received, an extension of time to answer the complaint on 10 February 2006. On 23 March 2006, Dr. Newell filed an answer and a motion to dismiss plaintiff\u2019s action on the grounds that the complaint failed to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. On 24 March 2006, Dr. Kinney likewise filed an answer, denying the substantive allegation of the complaint, and a motion to dismiss for failure to comply with Rule 9(j).\nOn 2 October 2006, the motions to dismiss filed by Dr. Newell and Dr. Kinney were heard before Judge W. Russell Duke, Jr. in Wilson County Superior Court. On 3 November 2006, Judge Duke entered an order granting the motions of Dr. Newell and Dr. Kinney for dismissal of the action due to plaintiff\u2019s failure to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure and the absence of justification for an allowance under Rule 702(e) of the North Carolina Rules of Evidence. Plaintiff now appeals the order of the trial court granting defendants\u2019 motion for dismissal.\nI.\nPlaintiff argues the trial court erred in dismissing plaintiffs complaint alleging medical malpractice due to plaintiffs failure to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. Specifically, plaintiff argues the trial court committed prejudicial error by (1) failing to find as a fact and conclude as a matter of law that neither Dr. Mark A. Newell nor Dr. Karen Kinney performed a surgical operation on the deceased while in their, care; (2) failing to find that neither Dr. Newell nor Dr. Kinney performed an operation or performed any surgery on the deceased within a medical specialty; (3) failing to find that since neither Dr. Newell nor Dr. Kinney performed any surgery on deceased, that it was not necessary for plaintiff to allege in her complaint that plaintiff comply with Rule 702(b) of the North Carolina Rules of Evidence or Rule 9(j) of the North Carolina Rules of Civil Procedure; (4) failing to find that plaintiffs expert witness could testify on the standard of health care where the ends of justice could be met; (5) concluding as a matter of law that plaintiff could not have reasonably expected that Dr. Marion Reynolds would qualify as an expert witness under Rule 702 of the Rules of Evidence; (6) failing to find that Dr. Kinney did not treat the deceased and did not perform any surgery on the deceased within a specialty; and (7) failing to find that Rule 9(j) did not apply to plaintiff when the medical specialist performed no surgery on the deceased. We disagree.\n\u201cRule 9(j) of the North Carolina Rules of Civil Procedure requires any complaint alleging medical malpractice by a health care provider to specifically assert that the \u2018medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and [that the expert] is willing to testify that the medical care did not comply with the applicable standard of care[.]\u2019 \u201d Trapp v. Maccioli, 129 N.C. App. 237, 239-40, 497 S.E.2d 708, 710, disc. review denied, 348 N.C. 509, 510 S.E.2d 672 (1998) (citation omitted); see N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) (2005). If such an assertion is not made, the trial court must dismiss the complaint. Trapp, 129 N.C. App. at 240, 497 S.E.2d at 710.\nRule 702 of our Rules of Evidence provides in pertinent part:\n(b) In a medical malpractice action as defined in G.S. 90-21.11, a person shall not give expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the person is a licensed health care provider in this State or another state and meets the following criteria:\n(1) If the party against whom or on whose behalf the testimony is offered is a specialist, the expert wit- . ness must:\na. Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or\nb. Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.\n(c) Notwithstanding subsection (b) of this section, if the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the action, must have devoted a majority of his or her professional time to either or both of the following:\n(1) Active clinical practice as a general practitioner; or\n(2) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the general practice of medicine.\n(e) Upon motion by either party, a resident judge of the superior court in the county or judicial district in which the action is pending may allow expert testimony on the appropriate standard of health care by a witness who does not meet the requirements of subsection (b) or (c) of this Rule, but who is otherwise qualified as an expert witness, upon a showing by the movant of extraordinary circumstances and a determination by the court that the motion should be allowed to serve the ends of justice.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 702 (2005). In the instant case, plaintiff made a motion pursuant to Rule 702(b) of the North Carolina Rules of Evidence and Rule 9(j)(2) of the North Carolina Rules of Civil Procedure stating that she would seek to have an expert witness qualified to testify as to the appropriate standard of medical care. Further, plaintiff asserted that the ends of justice would be met by allowing the witness to testify should the witness not meet the requirements of Rule 702 subsection (b) or (c).\nSubsequent to plaintiffs 702(b) motion, plaintiff identified Dr. Marion Reynolds, a board certified obstetrician, as plaintiffs Rule 9(j) certifying expert. In dismissing plaintiffs action against Dr. Newell and Dr. Kinney, the trial judge concluded that plaintiff could not have reasonably expected Dr. Reynolds to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence. The trial judge also concluded that sufficient extraordinary circumstances did not exist such that Dr. Reynolds should be allowed to testify to serve the ends of justice.\nPlaintiff now argues the trial judge erred in determining Dr. Reynolds did not meet the requirements of Rule 702 subsections (b) or (c). Plaintiff does not dispute that Dr. Kinney and Dr. Newell are specialists. Rather, plaintiff asserts that neither Dr. Kinney nor Dr. Newell was practicing within their specialty at the time they treated Mr. Knox: Upon review, the record does not support this contention. The undisputed evidence in the record indicates Dr. Kinney is a board certified emergency room physician and Dr. Newell is a board certified trauma surgeon. In addition, the record shows both doctors were acting within their capacities as specialists in treating Mr. Knox as a trauma patient. Thus, both Dr. Kinney and Dr. Newell are properly deemed as specialists under Rule 702. See Formyduval v. Bunn, 138 N.C. App. 381, 388, 530 S.E.2d 96, 101, disc. review denied, 353 N.C. 262, 546 S.E.2d 93 (2000); N.C. Gen. Stat. \u00a7 8C-1, Rule 702. Plaintiffs witness, Dr. Reynolds, is not certified as either an emergency room physician or a trauma surgeon, nor does Dr. Reynolds practice in either of these areas. Therefore, Dr. Reynolds could not reasonably be expected to qualify as an expert witness as required by Rule 9(j), and does not qualify as an expert witness under Rule 702 subsections (b) or (c). See N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j); N.C. Gen. Stat. \u00a7 8C-1, Rule 702(b) and (c).\nPlaintiff next argues that if Dr. Reynolds is not a competent expert witness under Rule 702 subsections (b) or (c), she should be certified under Rule 702(e) because the ends of justice would be met by allowing her testimony. We are unpersuaded by plaintiffs argument. The record on appeal does not show any extraordinary circumstances to support the certification of Dr. Reynolds under Rule 702(e), nor does plaintiff argue such circumstances exist. See N.C. Gen. Stat. \u00a7 8C-1, Rule 702(e). Therefore, we hold the trial judge did not err in concluding that plaintiff did not comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j).\nII.\nPlaintiff next contends that the trial court erred by failing to find that Rule 9(j) of the North Carolina Rules of Civil Procedure does not apply when the constitutional right to a trial by jury is guaranteed and not waived. However, the assignment of error plaintiff seeks to support does not make such a contention. See Wade v. Wade, 72 N.C. App. 372, 375, 325 S.E.2d 260, 266, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985) (\u201cThe assignment of error must clearly disclose the question presented.\u201d). Upon review, plaintiffs argument does not correspond to any of the assignments of error set out in the record on appeal. See N.C. R. App. P. 10 (2007). This Court has previously held that the \u201cscope of appellate review is limited to the issues presented by assignments of error set out in the record on appeal; where the issue presented in the appellant\u2019s brief does not correspond to a proper assignment of error, the matter is not properly considered by the appellate court.\u201d Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994) (citation omitted). Accordingly, we decline to address the merits of this argument. Id.\nTherefore, we hold the trial judge did not err in granting defendants\u2019 motion to dismiss for plaintiff\u2019s failure to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure.\nAffirmed.\nChief Judge MARTIN and Judge ELMORE concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "D. Lynn Whitted for plaintiff appellant.", "Helms Mulliss & Wicker, PLLC, by Keith P. Anthony, for Dr. Karen Kinney defendant appellee.", "Cranfill, Sumner & Hartzog, LLP, by David W. Ward and Jaye E. Bingham, for Dr. Mark Newell defendant appellee." ], "corrections": "", "head_matter": "JANET C. KNOX, Administratrix of the Estate of Toby R. Knox; and JANET C. KNOX, Individually, Plaintiffs v. UNIVERSITY HEALTH SYSTEMS OF EASTERN CAROLINA, INC., PITT COUNTY MEMORIAL HOSPITAL, INCORPORATED; DR. INDIRA MURR; DR. JODY HAIGOOD; DR. KAREN KINNEY; DR. MARK NEWELL; DR. CURTIS BOWER; DR. CHRISTOPHER LOGUE; JOHN DOE; and MARY DOE, Defendants\nNo. COA07-258\n(Filed 20 November 2007)\n1. Medical Malpractice\u2014 failure to comply with Rule 9(j) certification requirements \u2014 dismissal of complaint\nThe trial court did not err in a medical malpractice case by dismissing plaintiff\u2019s complaint based on plaintiff\u2019s failure to comply with N.C.G.S. \u00a7 1A-1, Rule 9(j) certification requirements, because: (1) plaintiff did not dispute that defendant doctors are both specialists, and the evidence revealed that both doctors were acting within their capacities as specialists under N.C.G.S. \u00a7 8C-1, Rule 702 in treating deceased as a trauma patient; (2) plaintiffs witness could not reasonably be expected to qualify as an expert witness as required by Rule 9(j) and did not qualify as an expert under Rule 702(b) or (c) since the witness was not certified as either an emergency room physician like one defendant or a trauma surgeon like the second defendant, nor did the witness practice in either of these areas; and (3) the record did not show any extraordinary circumstances to support certification under Rule 702(e), nor did plaintiff argue such circumstances existed.\n2. Appeal and Error\u2014 preservation of issues \u2014 failure to correspond argument to assignment of error\nAlthough plaintiff contends the trial court erred by failing to find that N.C.G.S. \u00a7 1A-1, Rule 9(j) certification did not apply when the constitutional right to a trial by jury is guaranteed and not waived, this argument is dismissed, because plaintiffs argument does not correspond to any of the assignments of error set out in the record on appeal as required by N.C. R. App. P. 10.\nAppeal by plaintiff from judgment entered 3 November 2006 by Judge W. Russell Duke, Jr., in Wilson County Superior Court. Heard in the Court of Appeals 15 October 2007.\nD. Lynn Whitted for plaintiff appellant.\nHelms Mulliss & Wicker, PLLC, by Keith P. Anthony, for Dr. Karen Kinney defendant appellee.\nCranfill, Sumner & Hartzog, LLP, by David W. Ward and Jaye E. Bingham, for Dr. Mark Newell defendant appellee." }, "file_name": "0279-01", "first_page_order": 309, "last_page_order": 315 }