# Brisson v. Kathy A. Santoriello, M.D., P.A.

> Supreme Court of North Carolina · May 5, 2000 · 351 N.C. 589

URL: https://www.frixlaw.com/law-library/cases/9852296

## Case

- **Full name:** Pamela Brisson and Dallas Brisson v. Kathy A. Santoriello, M.D., P.A., and Kathy A. Santoriello, M.D.
- **Court:** Supreme Court of North Carolina
- **Decided:** May 5, 2000
- **Citations:** 351 N.C. 589; 528 S.E.2d 568; 2000 N.C. LEXIS 354
- **Precedential status:** Published
- **Opinion:** Dissent by Wainwright
- **Judges:** Orr, Wainwright, Lake
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9852296

## How later opinions describe it (automated extraction)

- holding that for purposes of court rule entitling party to amend pleading “‘once as a matter of course at any time before a responsive pleading is served,’” a motion to dismiss pursuant to North Carolina’s counterpart to Nebraska’s § 6-1112(b)(6) is not a “‘responsive pleading…
- holding that separate rules of civil procedure addressing the same subject matter must be construed in pari materia and harmonized
- stating “[t]he majority’s analysis would effectively extend the medical malpractice statute of limitations from three years ... to four years and 120 days.”
- noting that "[a] Rule 41(a) dismissal strips the trial court of authority to enter further orders in the case, except" pursuant to Rule 41(d) in instances not relevant here

## Opinion text

Justice Wainwright
dissenting.
I respectfully dissent. I believe the majority’s interpretation of Rule 9(j) and its relationship to a voluntary dismissal pursuant to Rule 41(a) misconstrues both the General Assembly’s intent in enacting Rule 9(j) and our rules regarding statutory construction.
At the outset, a complete recitation of the provisions of Rule 9(j) is in order. It provides:
(j) Medical Malpractice.- — Any 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. 20-21.12 shall be dismissed unless:
(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;
(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
(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.
*599 Upon motion by the complainant prior to the expiration of the applicable statute of limitations, a resident judge of the superior court of the county in which the cause of action arose may allow a motion to extend the statute of limitations for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension. The plaintiff shall provide, at the request of the defendant, proof of compliance with this subsection through up to ten written interrogatories, the answers to which shall be verified by the expert required under this subsection. These interrogatories do not count against the interrogatory limit under Rule 33.
N.C.G.S. § 1A-1, Rule 9(j) (1999) (emphasis added). The official commentary to Rule 9 explains the rule’s general purpose: “This rule is designed to lay down some special rules for pleading in typically recurring contexts which have traditionally caused trouble when no codified directive existed.” N.C.G.S. § 1A-1, Rule 9 official commentary (1999). The General Assembly’s purpose in amending Rule 9 by adding subsection (j) is gleaned from the title of that legislation: “An Act to Prevent Frivolous Medical Malpractice Actions by Requiring that Expert Witnesses in Medical Malpractice Actions have Appropriate Qualifications to Testify on the Standard of Care at Issue and to Require Expert Witness Review as a Condition of Filing a Medical Malpractice Action.” Act of June 20, 1995, ch. 309, 1995 N.C. Sess. Laws 611 . It is apparent that Rule 9(j) was specifically drafted to govern the initiation of medical malpractice actions and to require physician review as a condition for filing the action. To aid in accomplishing these goals, the General Assembly included a means by which a plaintiff could obtain a 120-day extension of the three-year statute of limitations in order to comply with the prefiling physician-review requirement. Thus, the General Assembly recognized the additional burden placed on prospective medical malpractice plaintiffs by the physician-review requirement and allowed them additional time to comply.
The General Assembly did not specifically address the effect of the Rule 41(a) one-year “savings” provision in relation to the 120-day extension of the statute of limitations. However, I believe that in taking the extraordinary step of providing for an extension of the statute of limitations in the rule, the General Assembly has implicitly revealed its intention for the 120-day extension to take the place of *600 the one-year “savings” provision. Further evidence of the legislature’s intent may be derived from its use of the phrase “shall be dismissed” for actions which do not comply with the requirements of the rule. N.C.G.S. § 1A-1, Rule 9(j). The General Assembly, I think it reasonable to assume, did not contemplate a situation where a Rule 41(a) voluntary dismissal would be available in a case if the Rule 9(j) allegations had not been made, because the action was to have been mandatorily dismissed at its outset for failure to comply. This consequence of filing a noncompliant pleading prompted the legislature to provide an opportunity to extend the statute of limitations.
The majority’s analysis would effectively extend the medical malpractice statute of limitations from three years, see N.C.G.S. § l-15(c) (1999), to four years and 120 days. “The purpose of a statute of limitations is to afford security against stale demands, not to deprive anyone of his just rights by lapse of time.” Shearin v. Lloyd, 246 N.C. 363, 371 , 98 S.E.2d 508, 514 (1957). A defendant has the right to rely on the statute of limitations as an absolute bar against “stale” claims. See id.; see also Wilkes County v. Forester, 204 N.C. 163 , 167 S.E. 691 (1933). With all due respect, I decline to join in a decision approving such an extension. The result of the majority’s interpretation is a complete evisceration of the medical malpractice statute of limitations. I do not believe the General Assembly intended such a result when it set out to prevent “frivolous” medical malpractice actions.
In addition, a principle of statutory construction leads me to reach a different conclusion than the majority:
“Where there is one statute dealing with a subject in general and comprehensive terms, and another dealing with a part of the same subject in a more minute and definitive way, the two should be read together and harmonized . . . ; but, to the extent of any necessary repugnancy between them, the special statute . . . will prevail over the general statute .. . .”
McIntyre v. McIntyre, 341 N.C. 629, 631 , 461 S.E.2d 745, 747 (1995) (quoting National Food Stores v. N.C. Bd. of Alcoholic Control, 268 N.C. 624, 628-29 , 151 S.E.2d 582, 586 (1966)); accord Krauss v. Wayne County DSS, 347 N.C. 371, 378 , 493 S.E.2d 428, 433 (1997). In the instant case, the General Assembly has enacted a specific statute which provides for an extension of the statute of limitations in medical malpractice actions. Rule 41(a)(1) is a general statute affecting many types of civil actions. While I acknowledge the majority’s attempt to harmonize the provisions as we are bound to do, I believe *601 the result the majority has reached is “repugnant” because of its extension of the statute of limitations beyond that for which the General Assembly has already provided.
For the reasons stated, I dissent.
Justice Lake joins in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9852296. Public record. Not legal advice.