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    "judges": [
      "Judges STEELMAN and BEASLEY concur."
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    "parties": [
      "ROGER STEVENSON, Plaintiff v. N.C. DEPARTMENT OF CORRECTION, Defendant"
    ],
    "opinions": [
      {
        "text": "CALABRIA, Judge.\nRoger Stevenson (\u201cplaintiff\u2019) appeals an order of the North Carolina Industrial Commission (\u201cthe Commission\u201d) dismissing his complaint under the Tort Claims Act without prejudice. Plaintiff\u2019s claim against the North Carolina Department of Correction (\u201cdefendant\u201d) was dismissed for his failure to comply with N.C. Gen. Stat. 1A-1, Rule 9(j)(2009) (\u201cRule 9(j)\u201d). We affirm and remand for correction of a clerical error.\nI. Background\nPlaintiff is an inmate at the Lanesboro Correctional Institute in Polkton, North Carolina. On 5 May 2008, plaintiff sought medical treatment for a skin condition from Physician Assistant Frank Stanford (\u201cP.A. Stanford\u201d). Plaintiff requested that P.A. Stanford renew his prescription for skin cream. However, after an examination, P.A. Stanford determined that plaintiff no longer required a prescription for skin cream and denied plaintiff\u2019s request. Plaintiff alleges that P.A. Stanford failed to review his medical records and only gave plaintiff\u2019s skin a \u201ccursory\u201d glance before deciding to deny plaintiff\u2019s request for treatment.\nOn 14 May 2008, plaintiff filed a pro se Tort Claims Affidavit against defendant with the North Carolina Industrial Commission (\u201cthe Commission\u201d). On 10 June 2008, defendant filed a motion to dismiss plaintiff\u2019s claim on the basis of, inter alia, plaintiff\u2019s failure to comply with Rule 9(j). Defendant\u2019s motion to dismiss was heard before Deputy Commissioner Myra L. Griffin on 3 June 2009. On 30 June 2009, Deputy Commissioner Griffin entered an order dismissing plaintiff\u2019s claim for failure to comply with Rule 9(j).\nPlaintiff appealed to the Full Commission. On 8 April 2010, the Commission entered an order dismissing plaintiff\u2019s claim without prejudice. The Commission\u2019s order permitted plaintiff to re-file his claim with the required Rule 9(j) certification, so long as plaintiff re-filed his claim before the earlier of either (1) the expiration of the applicable statute of limitations or (2) one year after the entry of the Commission\u2019s order. Plaintiff appeals.\nII. Rule 9ffl\nUnder the Tort Claims Act, the Commission is \u201cconstituted a court for the purpose of hearing and passing upon tort claims against... all . . . departments, institutions and agencies of the State.\u201d\nN.C. Gen. Stat. \u00a7 143-291(a) (2009). The Commission\nshall determine whether or not each individual claim arose as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.\nId. \u201cThe standard of review for an appeal from the Full Commission\u2019s decision under the Tort Claims Act shall be for errors of law only under the same terms and conditions as govern appeals in ordinary civil actions____\u201d Pate v. N.C. DOT, 176 N.C. App. 530, 533-34, 626 S.E.2d 661, 664 (2006).\n\u201c[T]he North Carolina Rules of Civil Procedure apply in tort claims before the Commission, to the extent that such rules are not inconsistent with the Tort Claims Act, in which case the Tort Claims Act controls.\u201d Doe 1 v. Swannanoa Valley Youth Dev. Ctr., 163 N.C. App. 136, 141, 592 S.E.2d 715, 719 (2004) (citing N.C. Gen. Stat. \u00a7 143-300 and 4 NCAC 10B.0201(a)). In the instant case, plaintiffs claim was dismissed for failure to comply with Rule 9(j). This rule states:\nAny complaint alleging medical malpractice by a health care provider as defined in G.S. 90-21.11 in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:\n(1) The pleading specifically asserts that the medical 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 who is willing to testify that the medical care did not comply with the applicable standard of care;\n(2) The pleading specifically asserts that the medical care has been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or\n(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 9(j) (2009). \u201cIt is well established that if a complaint is filed without a Rule 9(j) certification, Rule 9(j) mandates that the trial court grant a defendant\u2019s motion to dismiss.\u201d Ford v. McCain, 192 N.C. App. 667, 671, 666 S.E.2d 153, 156 (2008).\nN.C. Gen. Stat. \u00a7 90-21.11 defines a medical malpractice action as \u201ca civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.\u201d N.C. Gen. Stat. \u00a7 90-21.11 (2009). In the instant case, plaintiff\u2019s claim alleged that PA. Stanford was negligent in failing to properly diagnose and treat plaintiff\u2019s skin condition with a prescription skin cream. Specifically, plaintiff alleged that P.A. Stanford was negligent by only giving the infected area a cursory glance before refusing to prescribe the skin cream, and that, as a result, plaintiff was \u201cforced to endure\u201d pain and suffering resulting from the lack of treatment. This allegation, that P.A. Stanford\u2019s denial of plaintiff\u2019s request for a prescription skin cream constituted a failure by P.A. Stanford to provide plaintiff with the appropriate standard of medical care, fell squarely within the definition of a medical malpractice claim. Consequently, plaintiffs claim was required to comply with Rule 9(j).\nPlaintiffs claim failed to include an assertion that plaintiffs medical care was reviewed by an expert who was willing to testify that P.A. Stanford\u2019s actions did not comply with the applicable standard of medical care. Therefore, plaintiff\u2019s claim did not comply with either Rule 9(j)(l) or (2). However, a claim which fails to comply with Rule 9(j)(l) or (2) will still be valid if the claim establishes negligence under the common law doctrine of res ipsa loquitur. N.C. Gen. Stat. \u00a7 1A-1, Rule 9(j)(3) (2009).\u201c[I]n order for res ipsa loquitur to apply, the negligence complained of must be of the nature that a jury\u2014 through common knowledge and experience \u2014 could infer.\u201d Diehl v. Koffer, 140 N.C. App. 375, 378-79, 536 S.E.2d 359, 362 (2000). Plaintiff\u2019s allegation that P.A. Stanford\u2019s examination was inadequate because it only consisted of what plaintiff characterized as a Acursory\u201d glance at the infected area is not the type of negligence that a jury could infer through common knowledge and experience. Expert testimony would be required in order to determine whether P.A. Stanford\u2019s examination was sufficient under the applicable standard of care, and as a result, plaintiff\u2019s claim also failed to establish negligence under the doctrine of res ipsa loquitur. Thus, plaintiff\u2019s claim does not comply with Rule 9(j) and the Commission properly dismissed the claim.\nTTT. Clerical Error\nHowever, the Commission\u2019s order contains a clerical error. \u201cA clerical error is an error resulting from a minor mistake or inadvertence, esp. in writing or copying something on the record, and not from judicial reasoning or determination.\u201d Marolf Constr. v. Allen\u2019s Paving Co., 154 N.C. App. 723, 726, 572 S.E.2d 861, 863 (2002) (internal quotations and citations omitted). The Commission\u2019s third conclusion of law states, \u201cAlthough Plaintiff has asserted a cause of action for medical malpractice, his Affidavit does comply with the special pleading requirements of Rule 9(j), and Plaintiff\u2019s claim for medical malpractice is therefore subject to dismissal without prejudice.\u201d (Emphasis added). It is clear from the context of this conclusion of law and the remainder of the Commission\u2019s order that the Commission intended to conclude that plaintiff\u2019s claim did not comply with the special pleading requirements of Rule 9(j). Consequently, we remand the instant case to the Commission for correction of this clerical error.\nIV. Conclusion\nSince plaintiff\u2019s claim was a medical malpractice action, he was required to comply with Rule 9(j). Plaintiff\u2019s failure to comply with this rule \u201cmandates that the trial court grant. . . defendant\u2019s motion to dismiss.\u201d Ford, 192 N.C. App. at 671, 666 S.E.2d at 156. Accordingly, the Commission correctly dismissed plaintiff\u2019s claim without prejudice. However, the Commission inadvertently omitted the word \u201cnot\u201d in its third conclusion of law, and thus, we remand for correction of this clerical error.\nAffirmed; remanded for correction of clerical error.\nJudges STEELMAN and BEASLEY concur.\n. Deputy Commissioner Griffin\u2019s order contained an identically worded conclusion of law, which we also consider a clerical error.",
        "type": "majority",
        "author": "CALABRIA, Judge."
      }
    ],
    "attorneys": [
      "Roger Stevenson, pro se, for plaintiff-appellant.",
      "Attorney General Roy Cooper, by Associate Attorney General Christina S. Hayes, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "ROGER STEVENSON, Plaintiff v. N.C. DEPARTMENT OF CORRECTION, Defendant\nNo. COA10-1169\n(Filed 15 March 2011)\n1. Medical Malpractice\u2014 Tort Claims Act \u2014 Rule 9(j)\u2014 applicable\nAn inmate\u2019s allegation in a complaint under the Tort Claims Act that a physician\u2019s assistant failed to provide the appropriate standard of medical care fell squarely within the definition of a medical malpractice claim. Compliance with N.C.G.S.\u00a7 1A-1, Rule 9(j) was required.\n2. Medical Malpractice\u2014 Rule 9(j) certification \u2014 res ipsa loquitur \u2014 not established\nAlthough a claim which fails to comply with N.C.G.S. \u00a7 1A-1, Rule 9(j) may still be valid if it establishes negligence under res ipsa loquitur, plaintiff\u2019s allegation that a physician assistant\u2019s examination consisted of only a cursory glance was not the type of negligence a jury could infer through common knowledge and experience and plaintiff did not establish negligence through res ipsa loquitur.\n3. Judgments\u2014 clerical error \u2014 remanded for correction\nA clerical error in a Tort Claims order was remanded for correction where the Industrial Commission concluded that plaintiff had complied with the special pleading requirements of Rule 9(j), even though it was clear from the context that the Commission had intended the opposite.\nAppeal by plaintiff from order entered 8 April 2010 by the North Carolina Industrial Commission. Heard in the Court of Appeals 23 February 2011.\nRoger Stevenson, pro se, for plaintiff-appellant.\nAttorney General Roy Cooper, by Associate Attorney General Christina S. Hayes, for defendant-appellee."
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