# Anderson v. Assimos

> Court of Appeals of North Carolina · October 2, 2001 · 146 N.C. App. 339

URL: https://www.frixlaw.com/law-library/cases/9855694

## Case

- **Full name:** MARGARET WRENN ANDERSON, Plaintiff v. DR. DEAN GEORGE ASSIMOS, M.D., DR. R. LAWRENCE KROOVARD, M.D., DR. MARK R. HESS, M.D., WAKE FOREST UNIVERSITY PHYSICIANS, WAKE FOREST UNIVERSITY BAPTIST MEDICAL CENTER, THE MEDICAL CENTER OF BOWMAN GRAY SCHOOL OF MEDICINE and NORTH CAROLINA BAPTIST HOSPITAL and THE NORTH CAROLINA BAPTIST HOSPITALS, INCORPORATED, Defendants
- **Court:** Court of Appeals of North Carolina
- **Decided:** October 2, 2001
- **Citations:** 146 N.C. App. 339; 553 S.E.2d 63; 2001 N.C. App. LEXIS 937
- **Precedential status:** Published
- **Opinion:** Concurring in part by Campbell
- **Judges:** Greene, McGee, Campbell
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated on other grounds by Anderson v. Assimos, 356 N.C. 415 (2002).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9855694

## Opinion text

CAMPBELL, Judge,
concurring in part and dissenting in part.
I concur with the majority opinion in holding that the doctrine of res ipsa loquitur did not apply to plaintiffs medical malpractice *347 action in that the alleged acts of negligence are not areas within a jury’s common knowledge or experience, and, thus, plaintiff would need the benefit of expert testimony to establish the applicable standard of care and any possible breach of this standard of care by defendants. However, I respectfully dissent from the majority’s holding that the trial court erred in dismissing plaintiff’s complaint because N.C. R. Civ. P. 9(J) (Rule 9(j)) is unconstitutional.
As the majority notes, plaintiff filed her original complaint on 17 August 1999, and then, on 23 August 1999, filed a motion pursuant to Rule 9(j)(3) requesting an additional 120 days to file a complaint conforming to Rule 9(j). The record does not indicate whether plaintiff ever brought her motion pursuant to Rule 9(j)(3) on for a hearing, and the trial court did not enter an order extending the statute of limitations. On 10 November 1999, plaintiff filed an amended complaint identical to her original complaint with the exception of a more extensive recitation of factual allegations detailing the medical treatment defendants provided her and the symptoms she suffered after that treatment. The amended complaint did not include the certification requirements of Rule 9(j)(l) or (2), instead stating, as did the original complaint, that it was being brought under the doctrine of res ipsa loquitur under Rule 9(j)(3). Defendants filed a motion to strike the amended complaint and a motion to dismiss pursuant to Rule 9(j) on 16 November 1999. After a hearing, the trial court denied defendants’ motion to strike but allowed defendants’ motion to dismiss for failure to comply with Rule 9(j). Plaintiff gave timely notice of appeal.
Although not raised before and ruled upon by the trial court, plaintiff made constitutional issues the basis of an assignment of error in the record on appeal to this Court. Specifically, plaintiff asserted that the pre-filing certification requirement of Rule 9(j) violates article I, section 18 of the North Carolina Constitution and the equal protection clauses of the federal and state constitutions. In their respective briefs, both parties fully addressed the issue of whether Rule 9(j) unconstitutionally restricts access to the courts in violation of article I, section 18 of the North Carolina Constitution. However, plaintiff did not address the equal protection argument in her brief to this Court. As the majority points out, constitutional questions that were not raised and passed upon by the trial court, generally will not be considered on appeal. State v. Cummings, 353 N.C. 281, 291 , 543 S.E.2d 849, 856 , reh’g dis’d, 353 N.C. 533 , 549 S.E.2d 553 (2001). Further, assignments of error not set out or supported in the *348 appellant’s brief, will be deemed abandoned pursuant to N.C. R. App. P. 28(b)(5). However, the majority has elected to consider the important constitutional issues raised pursuant to this Court’s discretionary authority under N.C. R. App. P. 2. While I do not object to the majority’s election to address these important constitutional issues, I cannot agree with the majority’s conclusion that Rule 9(j) is unconstitutional either under article I, section 18 of the North Carolina Constitution or under the equal protection clauses of the federal and state constitutions.
Access to the Courts
Although I wholeheartedly concur with the majority that the courts of this State should be open to all and that the General Assembly is forbidden from impairing the rights guaranteed by article I, section 18 of the North Carolina Constitution, see Osborn v. Leach, 135 N.C. 628, 631 , 47 S.E. 811, 812 (1904), our General Assembly is nevertheless permitted, under the “due course of law” language of article I, section 18, to “define the circumstances under which a remedy is legally cognizable and those under which it is not.” Lamb v. Wedgewood South Corp., 308 N.C. 419, 444 , 302 S.E.2d 868, 882 (1983). Further, it is well-established that there is a presumption in favor of the constitutionality of any legislative enactment and that reasonable doubts must be resolved in favor of sustaining legislative acts. Id. at 433 , 302 S.E.2d at 876 . Application of these principles to the instant case leads me to conclude that Rule 9(j) does not unconstitutionally restrict plaintiff’s access to the courts in violation of article I, section 18.
I disagree with the majority’s conclusion that the pre-filing certification requirement of Rule 9(j) so impairs and unduly burdens the right to file a medical malpractice action that it runs afoul of article I, section 18. Rather, I view Rule 9(j) as a permissible attempt by our General Assembly to define the circumstances under which relief will be available to an injured plaintiff in certain medical malpractice contexts. See Pangburn v. Saad, 73 N.C. App. 336 , 326 S.E.2d 365 (1985) (upholding the constitutionality of N.C.G.S. § 122-24, which grants personal immunity from certain suits to staff members at state hospitals). The majority recognizes that since plaintiff’s complaint does not allege facts that bring it within the doctrine of res ipsa loquitur, plaintiff “needs the benefit of expert testimony to establish the standard of care to be used with the administration of gentamycin and Defendants’ possible breach of this standard of care.” Thus, it is without contention that plaintiff would ultimately need an expert in order *349 to meet her burden to carry her claim to a jury. To require plaintiff to assert in her pleading that the medical care has been reviewed by a person who is at least presumably qualified and willing to testify for plaintiff, does not in my opinion deny plaintiff the right of access to our courts. Rather, Rule 9(j) is similar to those statutory prohibitions, such as our rules of procedure and statutes of limitations, as well as constitutional provisions such as sovereign immunity, which restrict the ability of plaintiffs to recover for certain injuries, but do not completely deny recovery or abolish common law causes of action, and have consistently been found not to violate article I, section 18 of the North Carolina Constitution. See Dixon v. Peters, 63 N.C. App. 592 , 306 S.E.2d 477 (1983).
Equal Protection
I likewise dissent from the majority’s conclusion that Rule 9(j) violates the equal protection clauses of the federal and state constitutions. The majority states that Rule 9Q) creates two classes of individuals, those seeking to assert a medical malpractice claim and those seeking to assert a non-medical malpractice claim, and unconstitutionally discriminates against those seeking to assert a medical malpractice claim. While I agree with the majority’s identification of the two classes created by Rule 9(j), I do not agree that Rule 9(j) affects a fundamental right, and is therefore subject to strict scrutiny analysis. Rather, the right arguably being infringed upon by Rule 9(j) is the right to file a medical malpractice claim, which I do not agree rises to the level of a fundamental right. Since no suspect class or fundamental right is involved, Rule 9(j) need only bear a rational relationship to a legitimate government interest in order to comply with equal protection.
While the majority correctly contends that the record contains no support for defendants’ claim that frivolous medical malpractice lawsuits were a problem before the enactment of Rule 9(j), or that Rule 9(j) has alleviated that problem, that is necessarily the case since the constitutionality of Rule 9(j) was not argued in the trial court, and plaintiff did not present any argument in her brief that Rule 9(j) violated equal protection.
However, there is ample judicial authority from which one can conclude that the purpose of Rule 9(j) is to free the courts from frivolous medical malpractice suits at an early state of litigation. Since the early-1970’s, nearly every jurisdiction in the country has responded in some fashion to the perceived medical malpractice *350 insurance crisis, in an attempt to reduce the cost of medical malpractice insurance and insure its continued availability to the providers of health care. In North Carolina, the Report of the North Carolina Professional Liability Insurance Study Commission (1976), analyzed the malpractice crisis in this state, with the Study Commission recommending procedural changes which were subsequently enacted by the legislature. See Roberts v. Durham County Hospital Corp., 56 N.C. App. 533 , 289 S.E.2d 875 (1982), aff'd, 307 N.C. 465 , 298 S.E.2d 384 (1983) (upholding the constitutionality of the statute of repose (N.C.G.S. § 1-15(c)) for a medical malpractice action based upon the leaving of a foreign object in a person’s body during the performance of professional services). In the more recent past, nearly every state has passed some form of a remedial measure designed to weed out frivolous medical malpractice claims at an early stage of litigation. As the majority points out, some states have addressed this issue by the adoption of medical review panels which simply require that medical malpractice claims be reviewed prior to being filed. 1 David W. Louisell and Harold Williams, Medical Malpractice § 13A (2001). Many other states have adopted requirements similar to Rule 9(j), requiring the filing of an affidavit of an expert witness or a summary of the expert’s testimony concerning the merits of the claim. Id. § 9.07[2], Such statutes have consistently been held to be rationally related to the legitimate state interest of eliminating frivolous medical malpractice suits. See Mahoney v. Doergoff Surgical Servs., 807 S.W.2d 503 (Mo. Sup. Ct. 1991); Henke v. Dunham, 450 N.W.2d 595 (Minn. Ct. App. 1990); Sakovich v. Dodt, 529 N.E.2d 258 (Ill. Ct. App. 1988). I agree with the reasoning of these cases and would hold that Rule 9(j) does not violate equal protection.
For the foregoing reasons, I respectfully dissent, and would affirm the order of the trial court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9855694. Public record. Not legal advice.