Fazzari v. New Hanover Reg'l Med. Ctr.

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-242

No. COA20-473

Filed 1 June 2021

New Hanover County, No. 17 CRS 3609

ESTATE OF ANTHONY FAZZARI by RUTH FAZZARI, Executrix; and RUTH

FAZZARI, Plaintiffs,

v.

NEW HANOVER REGIONAL MEDICAL CENTER; WILMINGTON HEALTH,

PLLC; SEJAL S. PATEL, M.D. and JOSHUA D. DOBSTAFF, M.D., Defendants.

Appeal by plaintiffs from orders entered 7 January 2020 and 13 January 2020

by Judge Phyllis M. Gorham in New Hanover County Superior Court. Heard in the

Court of Appeals 28 April 2021.

Chleborowicz Law Firm, PLLC, by Christopher A. Chleborowicz and Elijah A.

T. Huston, for plaintiffs-appellants.

Harris, Creech, Ward & Blackerby, P.A., by R. Brittain Blackerby and Terra N.

Johnson, for defendant-appellee New Hanover Regional Medical Center.

Walker, Allen, Grice, Ammons, Foy & Klick, LLC, by Jerry A. Allen, Jr., and

Louis F. Foy, III, for defendants-appellees Wilmington Health, PLLC, Sejal S.

Patel, M.D., and Joshua D. Dobstaff, M.D.

ARROWOOD, Judge.

¶1 The Estate of Anthony Fazzari by Ruth Fazzari, Executrix, and Ruth Fazzari

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(collectively, “plaintiffs”) appeal from the trial court’s orders granting all defendants’1

(1) motions to dismiss; (2) motions to exclude plaintiffs’ sole testifying and standard-

of-care expert witness; and (3) summary judgment motions. For the following

reasons, we affirm the trial court’s order entered 7 January 2020 granting

defendants’ motions to dismiss pursuant to Rule 9(j) of the North Carolina Rules of

Civil Procedure.

I. Background

¶2 At all times relevant, Anthony Fazzari (“decedent”) was a 77-year-old man with

a history of multiple myeloma and myelodysplastic syndrome. Decedent had been

periodically admitted to defendant New Hanover Regional Medical Center

(“NHRMC”) for neutropenic fever and other complications related to multiple

myeloma and myelodysplastic syndrome.

¶3 On 12 April 2016, NHRMC admitted decedent to the care of defendant Sejal S.

Patel, M.D. (“Dr. Patel”), who noted that decedent presented signs of neutropenic

fever and had the condition of “pancytopenia: chronic”—too few red blood cells, white

blood cells, and platelets. Dr. Patel prescribed decedent 5,000 units of Heparin2 every

1 We will refer to all named defendants collectively unless otherwise noted.

2 Heparin may reduce one’s platelet count.

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eight hours as a deep vein thrombosis (“DVT”) prophylactic.3 Defendant Joshua D.

Dobstaff, M.D. (“Dr. Dobstaff”), another provider for decedent at the time, was

allegedly aware of decedent’s depressed platelet count but did not take any action to

mitigate the issue. At all times relevant, Drs. Dobstaff and Patel were employed by

defendant Wilmington Health, PLLC, and practicing as hospitalists when they

provided inpatient care to decedent at NHRMC.

¶4 On the evening of his admission, blood testing indicated that decedent’s

platelet count was 24 K/uL, far below NHRMC’s target level of 50 K/uL. Given

decedent’s low platelet count, a secure electronic message was sent to David Schultz,

M.D. (“Dr. Schultz”), regarding “critical lab value – Platelets 24” and for “review

case.”4 Notwithstanding the above, decedent was administered the previously

prescribed dose of Heparin later that night. Thereafter, at 5:44 a.m. on 13 April 2016,

decedent’s platelet count had dropped from 24 K/uL to 18 K/uL. Notwithstanding

this decrease, the orders for Heparin were not discontinued. Plaintiffs allege that

after reviewing the lab results reflecting the decrease in decedent’s platelet count,

neither Dr. Dobstaff nor Dr. Patel changed any orders (including the Heparin

3 Plaintiffs allege that at the time of decedent’s admission, his platelet count was “depressed

indicating that Heparin as a DVT prophylaxis was an inappropriate course of treatment,

particularly in light of pending chemotherapy which would further depress platelet counts.”

4 Dr. Schultz is not a defendant in this case. Also, it is unclear whether there was any

response to this secure electronic message.

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prescription) and failed to take any other action to restore decedent’s platelet count

to target level. However, during the afternoon of 13 April 2016, a nurse refrained

from administering the scheduled dose of Heparin noting in decedent’s medical record

that his platelet count was 18 K/uL.

¶5 At 3:42 a.m. on 14 April 2016, decedent’s blood was again collected, and his

platelet count was determined to be 20 K/uL. Shortly thereafter, decedent

complained of a headache and requested medication. In light of these events, a

NHRMC care provider sent another secured message to Dr. Schultz stating that

decedent appeared confused, impulsive, disoriented, and was exhibiting slurred

speech. It is unclear whether Dr. Schultz or any other hospitalists responded to or

received these messages; plaintiffs allege that NHRMC did not have the correct

information on file for these secure electronic messages which prevented the listed

physician in the system from receiving the messages as he or she was not on call to

receive or respond to the communications.

¶6 Later, a physician’s assistant was notified about decedent’s deteriorating

condition. The Heparin order was discontinued approximately two hours later,

around noon on 14 April 2016, and platelet therapy was initiated. After the initiation

of platelet therapy, decedent began showing signs of stroke with a diagnosis of Acute

Brain Hemorrhage or Intracerebral Hemorrhage (“ICH”). A computerized

tomography scan was ordered, and the imaging confirmed that decedent was

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suffering from an ICH. While decedent’s platelet count had improved from the

platelet therapy and blood transfusions, decedent was not an operative candidate for

the ICH pressure. Decedent was then transferred to the Intensive Care Unit (“ICU”)

where he was treated until 20 April 2016, when decedent eventually succumbed to

the ICH.

¶7 On 21 September 2017, plaintiffs filed a complaint against all defendants

asserting claims for (1) professional negligence/wrongful death, (2) negligent

infliction of emotional distress, and (3) loss of consortium. Pursuant to Rule 9(j) of

the North Carolina Rules of Civil Procedure, plaintiffs certified that all of the medical

records pertaining to defendants’ negligence had been reviewed by a person who was

reasonably expected to qualify under Rule 702 of the North Carolina Rules of

Evidence.

¶8 On 30 May 2018, plaintiffs served responses to NHRMC’s interrogatories.

Plaintiffs’ responses identified Arnold Rubin, M.D. (“Dr. Rubin”), as plaintiffs’ Rule

9(j) expert. On 2 July 2019, plaintiffs served their designation of experts; plaintiffs’

designation of experts likewise identified Dr. Rubin as plaintiffs’ sole Rule 9(j) expert.

¶9 Defendants deposed Dr. Rubin on 5 November 2019. Following Dr. Rubin’s

deposition, defendants Wilmington Health, PLLC, Dr. Patel, and Dr. Dobstaff filed a

motion to exclude Dr. Rubin from testifying as a standard-of-care expert pursuant to

Rule 9(j) of the North Carolina Rules of Civil Procedure, Rule 702 of the North

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Carolina Rules of Evidence, N.C. Gen. Stat. § 90-21.12, and other applicable law.

These same defendants contemporaneously filed a motion to dismiss pursuant to

“Rule 9, Rule 12, Rule 37, Rule 41 and Rule 56 of the North Carolina Rules of Civil

Procedure” on the grounds that plaintiffs “failed to comply with the requirements of

Rule 9(j) of the North Carolina Rules of Civil Procedure.” NHRMC filed practically

identical motions on 25 September 2019. The trial court heard oral argument on all

motions on 2 December 2019.

¶ 10 Following the hearing, the trial court took the motions under advisement and

subsequently granted all motions by entering the following orders: (1) “Order

Granting Motions of All Defendants to Dismiss Pursuant to Rule 9(j)” on

7 January 2020; (2) “Order Granting Motions of All Defendants to Exclude Plaintiff’s

Standard of Care Expert Witness Dr. Arnold Rubin” on 13 January 2020; and (3)

“Order Granting Motions of All Defendants for Summary Judgment” on

13 January 2020. Plaintiffs filed a notice of appeal of all three orders on

28 January 2020.

¶ 11 This appeal is properly before this Court pursuant to N.C. Gen. Stat. § 7A-

27(b) (2019).

A. Rule 9(j) Certification

¶ 12 Because compliance with Rule 9(j) presents a question of law, this Court

reviews whether the trial court properly dismissed a complaint under Rule 9(j) de

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novo. Est. of Wooden ex rel. Jones v. Hillcrest Convalescent Ctr., Inc., 222 N.C. App.

396, 403, 731 S.E.2d 500, 506 (2012) (citation omitted).

¶ 13 In a medical malpractice suit, a “plaintiff must show (1) the applicable

standard of care; (2) a breach of such standard of care by the defendant; (3) the

injuries suffered by the plaintiff were proximately caused by such breach; and (4) the

damages resulting to the plaintiff.” Weatherford v. Glassman, 129 N.C. App. 618,

621, 500 S.E.2d 466, 468 (1998) (citation omitted). “Because questions regarding the

standard of care for health care professionals ordinarily require highly specialized

knowledge, the plaintiff must establish the relevant standard of care through expert

testimony.” Smith v. Whitmer, 159 N.C. App. 192, 195, 582 S.E.2d 669, 671-72 (2003)

(citations omitted).

¶ 14 Rule 702 of the North Carolina Rules of Evidence governs the admission of

expert testimony and states that a medical expert witness may qualify to give expert

testimony as to the appropriate standard of care only if the person (1) is a licensed

health care provider; (2) specializes in the same specialty or similar specialty as the

party against whom the testimony is offered; and (3) during the year immediately

preceding the date of the occurrence that is the basis for the action, devoted a majority

of his time to the active clinical practice of the same health profession in which the

party against whom the testimony is offered or the instruction of students in the same

health profession in which the party against whom the testimony is offered. N.C. R.

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Evid. 702(b)(1)-(2). When the requirements of Rule 702 are satisfied, the trial court

must then determine whether the expert is “familiar with the experience and training

of the defendant and either (1) the physician is familiar with the standard of care in

the defendant’s community, or (2) the physician is familiar with the medical resources

available in the defendant’s community and is familiar with the standard of care in

other communities having access to similar resources.” Barham v. Hawk, 165 N.C.

App. 708, 712, 600 S.E.2d 1, 4 (2004) (citation and quotation marks omitted) (quoting

another source).

¶ 15 Rule 9(j) of the North Carolina Rules of Civil Procedure requires that any

complaint alleging medical malpractice by a health care provider that fails to comply

with the applicable standard of care shall be dismissed unless:

(1) The pleading specifically asserts that the medical care

and all medical records pertaining to the alleged

negligence that are available to the plaintiff after

reasonable inquiry have 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.C. R. Civ. P. 9(j)(1). Failure to adhere to the strict expert requirements set out in

Rule 9(j) necessarily leads to dismissal. Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d

162, 165 (2002). Moreover, it is well settled that “even when a complaint facially

complies with Rule 9(j) by including a statement pursuant to Rule 9(j), if discovery

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subsequently establishes that the statement is not supported by the facts, then

dismissal is likewise appropriate.” Ford v. McCain, 192 N.C. App. 667, 672, 666

S.E.2d 153, 157 (2008).

¶ 16 In the case at hand, plaintiffs could not have reasonably expected Dr. Rubin to

qualify as an expert witness under Rule 702 such that he could proffer testimony that

the medical care provided to decedent did not comply with the applicable standard of

care. See N.C. R. Civ. P. 9(j)(1). Rule 9(j) incorporates by reference Rule 702(b) of the

North Carolina Rules of Evidence, which permits a medical expert witness to give

expert testimony as to the appropriate standard of care only if the person (1) is a

licensed health care provider; (2) specializes in the same specialty or similar specialty

as the party against whom the testimony is offered; and (3) during the year

immediately preceding the date of the occurrence that is the basis for the action,

devoted a majority of his time to the active clinical practice or the instruction of

students in the same health profession in which the party against whom the

testimony is offered. N.C. R. Civ. P. 9(j)(1); N.C. R. Evid. 702(b)(1)-(2). Per Rule

702(b), the appropriate standard of care to which the expert must reasonably be

expected to testify is defined in N.C. Gen. Stat. § 90-21.12, which provides the

following:

[I]n any medical malpractice action as defined in G.S. 90-

21.11(2)(a), the defendant health care provider shall not be

liable for the payment of damages unless the trier of fact

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finds by the greater weight of the evidence that the care of

such health care provider was not in accordance with the

standards of practice among members of the same health

care profession with similar training and experience

situated in the same or similar communities under the

same or similar circumstances at the time of the alleged act

giving rise to the cause of action; or in the case of a medical

malpractice action as defined in G.S. 90-21.11(2)(b), the

defendant health care provider shall not be liable for the

payment of damages unless the trier of fact finds by the

greater weight of the evidence that the action or inaction of

such health care provider was not in accordance with the

standards of practice among similar health care providers

situated in the same or similar communities under the

same or similar circumstances at the time of the alleged act

giving rise to the cause of action.

N.C. Gen. Stat. § 90-21.12(a) (2019). Thus, plaintiffs must not only reasonably expect

the putative expert witness to qualify under Rule 702(b), but they must also

reasonably expect the witness to be able to testify as to the applicable standard of

care set out in N.C. Gen. Stat. § 90-21.12(a). While the putative expert is not required

to have practiced in the same community as defendant, the “witness must

demonstrate that he is familiar with the standard of care in the community where

the injury occurred, or the standard of care of similar communities.” Smith, 159 N.C.

App. at 196, 582 S.E.2d at 672 (citations omitted).

¶ 17 Here, plaintiffs could not have reasonably expected Dr. Rubin to qualify as an

expert in this medical malpractice case for at least two reasons. We discuss each

issue in turn.

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B. Rule 702(b)(2) of the North Carolina Rules of Evidence

¶ 18 First, plaintiffs could not have reasonably believed that during the year

immediately preceding the date of the occurrence that is the basis for this action, Dr.

Rubin devoted a majority of his professional time to the active clinical practice of the

same or similar health profession of Drs. Patel and Dobstaff (Internal and Hospitalist

Medicine). Nor could plaintiffs have reasonably believed that from April 2015 to April

2016, Dr. Rubin devoted a majority of his professional time to the instruction of

medical students or residents in Internal and Hospitalist Medicine. During his

November 2019 deposition, Dr. Rubin confirmed that he retired from active clinical

practice in 2013 and became a professor emeritus at Rutgers University thereafter.

His teaching responsibilities included a monthly lecture to fellows training in

hematology and oncology, one yearly lecture to first-year medical students, and

“occasional lectures to other students[.]” Notwithstanding the value of these

teachings, it is clear that during the year immediately preceding the date of the

occurrence that is the basis for this action (i.e., April 2016), Dr. Rubin did not devote

a majority of his professional time to the active clinical practice of the same or similar

health professions of Drs. Patel and Dobstaff or to the instruction of medical students

or residents in the same or similar specialty areas as Drs. Patel and Dobstaff. Indeed,

in the year preceding the events giving rise to this action, Dr. Rubin served as the

medical director of a community blood center—a non-teaching position. Thus, it is

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clearly evident that Dr. Rubin did not devote a majority of his professional time to

the instruction of any students or residents during the year preceding this case. In

short, the trial court properly dismissed plaintiffs’ complaint pursuant to Rule 9(j) as

plaintiffs could not have reasonably expected Dr. Rubin to satisfy the requirement of

Rule 702(b)(2) that he devote a majority of his professional time to the active clinical

practice or instruction of students or residents in the same or similar health

professions as Drs. Patel and Dobstaff. Because Dr. Rubin does not meet the practice-

instruction requirement, we need not address the remaining requirements of Rule

702.

C. Review of Medical Records

¶ 19 In addition to plaintiffs’ expert’s failure to satisfy Rule 702(b)(2), the Rule 9(j)

certification is defective in at least one other respect. Rule 9(j) requires certification

in the operative pleading that “all medical records pertaining to the alleged

negligence . . . have been reviewed by a person who is reasonably expected to qualify

as an expert witness under Rule 702 . . . .” N.C. R. Civ. P. 9(j)(1). Plaintiffs’ putative

expert, Dr. Rubin, admittedly reviewed only twenty-five percent of the relevant

medical records related to decedent’s April 2016 admission at NHRMC. It is

undisputed that Dr. Rubin examined only the medical records related to decedent’s

admission at NHRMC between 12 April 2016 and 14 April 2016. He did not review

any medical records for treatment and care between 15 April 2016 and 20 April 2016,

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the date of decedent’s death, although such documents were available to plaintiffs.

Therefore, the trial court properly ruled that plaintiffs failed to comply with Rule 9(j).

See Fairfield v. WakeMed, 261 N.C. App. 569, 574, 821 S.E.2d 277, 281 (2018)

(“Allowing a plaintiff’s expert witness to selectively review a mere portion of the

relevant medical records would run afoul of the General Assembly’s clearly expressed

mandate that the records be reviewed in their totality. Rule 9(j) simply does not

permit a case-by-case approach that is dependent on the discretion of the plaintiff’s

attorney or her proposed expert witness as to which of the available records falling

within the ambit of the Rule are most relevant.”).

¶ 20 Moreover, we disagree with plaintiffs’ assertion that medical records dated

after 14 April 2016 do not “pertain to the alleged negligence.” Plaintiffs aver in their

September 2017 complaint that after 14 April 2016, decedent’s platelet count

“improved significantly with the platelet therapy and blood transfusions.” Plaintiffs

assert that after 14 April 2016, decedent was treated in the ICU with platelet therapy

and medications until his death on 20 April 2016. Certainly records reflecting any

actions taken by defendants or their agents in the days after the discontinuation of

Heparin and the days before decedent’s death would be highly relevant and important

to an expert’s opinion on the matter. Thus, we find that medical records from

14 April 2016 through 20 April 2016 are highly relevant and material to the alleged

negligence. Because said records were not reviewed by Dr. Rubin, we affirm the trial

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court’s conclusion that plaintiffs failed to satisfy the substantive pre-filing

requirement of Rule 9(j) that Dr. Rubin review all medical records pertaining to the

alleged negligence that were reasonably available to plaintiffs.

¶ 21 Because plaintiffs could not have reasonably believed that Dr. Rubin would

qualify to testify as an expert under Rule 702 as he had not been actively practicing

or teaching in the year prior to his designation, and because Dr. Rubin failed to review

all medical records pertaining to the alleged negligence that were available to

plaintiffs, and in light of the fact that Dr. Rubin was plaintiffs’ sole expert witness,

the trial court properly dismissed plaintiffs’ complaint pursuant to Rule 9(j) of the

North Carolina Rules of Civil Procedure. See Smith, 159 N.C. App. at 197, 582 S.E.2d

at 673 (holding that exclusion of sole expert witness rendered plaintiff unable to

establish essential element of malpractice claim and thus warranted judgment in

favor of defendants).5

III. Conclusion

¶ 22 For the foregoing reasons, we affirm the trial court’s order entered

7 January 2020 dismissing plaintiffs’ complaint for failure to comply with the

provisions of Rule 9(j) of the North Carolina Rules of Civil Procedure.

AFFIRMED.

5 In light of our holding affirming the Rule 9(j) dismissal, we need not reach plaintiffs’

remaining arguments nor review the trial court’s additional orders.

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Judges DILLON and WOOD concur.