HERMAN STEWART AND WIFE, ELIZABETH A. STEWART, Plaintiffs, v.
SOUTHEASTERN REGIONAL MEDICAL CENTER, ROBERT A. BAREFOOT, JR.,
M.D., SUNIL SHARMA, M.D., EMERGENCY PHYSICIAN ASSOCIATES, INC.,
LIFELINK CRITICAL CARE TRANSPORT, a division of CAPE FEAR VALLEY
MEDICAL CENTER, CUMBERLAND COUNTY HOSPITAL SYSTEM, INC., a/k/a
CAPE FEAR VALLEY MEDICAL CENTER, MICHEL C. PARE, M.D., CAROLINA
NEUROSURGICAL SERVICES, P.C., MAX H. FAYKUS, JR., M.D., DAVID R.
FISHER, M.D., THOMAS J. MEAKEM, M.D., LEROY ROBERTS, JR., M.D.,
and CAROLINA REGIONAL RADIOLOGY, P.A., Defendants
No. COA00-46
(Filed 20 March 2001)
1. Medical Malpractice--joinder of defendants--venue
It was not improper for plaintiffs in a medical malpractice
action to join all of the defendants and to file the action in
Robeson County when plaintiff was injured in an automobile
accident in Robeson County, taken to a hospital in Robeson
County, and subsequently transferred to a hospital in Cumberland
County. Plaintiff named seventeen defendants, seven of whom were
in Robeson County, stated that the alleged negligence took place
in Robeson and Cumberland Counties, alleged that defendants'
combined and individual negligence directly and proximately
resulted in temporary and permanent injuries to plaintiff, and
did not attempt to apportion and attribute plaintiff's damages to
individual defendants.
2. Medical Malpractice--Rule 9(j) extension--location of motion
An extension under N.C.G.S. § 1A-1, Rule 9(j) was properly
obtained in Robeson County and was effective against all named
defendants where plaintiff was injured in an automobile accident
in Robeson County, received treatment at a hospital in Robeson
County, was transferred to Cumberland County for further
treatment and brought a medical malpractice action against
defendants in both counties. The cause of action first arose in
Robeson County; a single motion filed in the county where the
cause of action first arose will be effective to extend the
statute of limitations against all defendants ultimately named in
the action. As the Robeson County Superior Court had
jurisdiction, the extension order was valid and effective as to
all of the joined defendants, including the Cumberland County
defendants, and the Cumberland County Superior Court was
obligated to give the extension full effect as to all parties
after the transfer of the action to Cumberland County.
3. Medical Malpractice--Rule 9(j) extension--notice and
service--location of motion
Plaintiffs seeking a Rule 9(j) extension are not required to
seek an extension in every county where every potential defendant
is located, regardless of whether those defendants are ultimatelyincluded in the eventual complaint and, because a complaint has
not yet been filed, parties seeking a Rule 9(j) extension must
neither name nor serve notice upon potential defendants.
Judge GREENE concurring.
Appeal by plaintiffs from orders entered 4 August 1999 and 25
August 1999 by Judge Narley L. Cashwell in Cumberland County
Superior Court. Heard in the Court of Appeals 13 February 2001.
Poling & Casey, by Richard D. Poling and Deborah G. Casey, for
plaintiff appellants.
Yates, McLamb & Weyher, L.L.P., by Renee B. Crawford, for
Michel C. Pare, M.D., and Carolina Neurosurgical Services,
P.C., defendant appellees; and Walker, Clark, Allen, Herrin &
Morano, L.L.P., by Gay Parker Stanley, for Thomas J. Meakem,
M.D., Leroy Roberts, Jr., M.D., and Carolina Regional
Radiology, P.A., defendant appellees.
Twiggs, Abrams, Strickland & Trehy, P.A., by Karen M. Rabenau
and Donald H. Beskind, amicus curiae for North Carolina
Academy of Trial Lawyers.
McCULLOUGH, Judge.
Plaintiff Herman Stewart was injured in an automobile accident
in Robeson County, North Carolina, on 14 January 1995. He was
taken from the scene of the accident to Southeastern Regional
Medical Center in Robeson County, where he was evaluated by
defendant Robert A. Barefoot, Jr., M.D., an emergency room
physician, for a closed head injury. Mr. Stewart was subsequently
transferred to Cape Fear Valley Hospital in Cumberland County,
where he received medical treatment from various physicians,
including defendants Thomas J. Meakem, M.D., Leroy Roberts, Jr.,
M.D., and Michel C. Pare, M.D. Mr. Stewart remained hospitalized
at Cape Fear Valley Hospital until 4 June 1995, when he was
transferred to a hospital near his home in New York State. In January 1998, plaintiffs filed a motion in Robeson Cou
nty
Superior Court pursuant to N.C. Gen. Stat. § 1A-1, Rule 9(j),
seeking a 120-day extension of the applicable statute of
limitations. The motion named numerous potential defendants
located in both Robeson and Cumberland Counties, including
defendants Dr. Pare, Carolina Neurosurgical Services, P.C., Dr.
Meakem, Dr. Roberts, and Carolina Regional Radiology, P.A., all of
whom were located in Cumberland County. The motion for extension
of the applicable statute of limitations to 14 May 1998 was allowed
by a resident superior court judge in Robeson County.
On 11 May 1998, plaintiffs filed their complaint in Robeson
County Superior Court, alleging that defendants failed to properly
assess and treat Mr. Stewart's spinal cord injuries, resulting in
permanent physical disabilities and other injuries. The Cumberland
County defendants (Dr. Pare, Dr. Meakem, Dr. Roberts, Carolina
Neurosurgical Services, P.C., and Carolina Regional Radiology,
P.A.) filed answers alleging, among other things, that plaintiffs'
action was time-barred as to them and subject to dismissal. Upon
a motion filed by defendant Cape Fear Valley Medical Center, the
case was later transferred to Cumberland County Superior Court.
Over thirteen months after the complaint was filed, the Cumberland
County defendants filed motions to dismiss the action, contending
that plaintiffs had failed to comply with N.C.R. Civ. P. 9(j) in
obtaining an extension of the statute of limitations. The motions
to dismiss were allowed by the trial court, and plaintiffs
appealed.
[1]Plaintiffs argue that the trial court erred in dismissingtheir complaint with prejudice for their alleged failu
re to comply
with N.C.R. Civ. P. 9(j). We agree, and reverse the orders of
dismissal.
The motions to dismiss filed by the Cumberland County
defendants were based on the alleged failure of plaintiffs to
comply with N.C.R. Civ. P. 9(j), which concerns, in part,
extensions of the applicable statute of limitations in medical
malpractice actions. N.C. Gen. Stat. § 1A-1, Rule 9(j) (1999).
Rule 9(j) provides in relevant part:
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.
Id. Defendants argue that the extension obtained by plaintiffs in
Robeson County was ineffective to extend the statute of limitations
as to them, because any cause of action as to them arose in
Cumberland County. Therefore, they argue, plaintiffs should have
obtained the extension from a superior court resident judge in
Cumberland County. Defendants further contend that Rule 9(j)
effectively changes venue rules, so that the only proper venue in
a medical malpractice case is the county in which the cause of
action arose.
Plaintiffs respond that: (1) the cause of action arose in
Robeson County and was thus properly filed there; (2) defendantsfailed to properly raise the Rule 9(j) defense in a timely manner;
(3) defendants' reading of Rule 9(j) would substantially prejudice
plaintiffs, while denying the motions to dismiss would cause no
undue prejudice to defendants; (4) defendants' reading of Rule 9(j)
would undermine the legislative intent behind the statute, which
requires a liberal construction of pleadings in favor of the
pleader, with a view toward effecting substantial justice; and (5)
defendants' motions should be barred under principles of equitable
estoppel and laches.
We note initially that it was not improper for plaintiffs to
join defendants as named defendants in this action. See, e.g.,
Godfrey v. Power Co., 223 N.C. 647, 649, 27 S.E.2d 736, 737 (1943)
(where the negligent acts of two or more persons concur in
producing a single injury, with or without concert among them, the
general rule is that they may be treated as joint tort-feasors and
sued separately or together at the election of the injured party);
Ipock v. Gilmore, 73 N.C. App. 182, 186, 326 S.E.2d 271, 275, disc.
reviews denied, 314 N.C. 116, 332 S.E.2d 481 (1985) (joint
tortfeasors may act "'independently and without concert of action
or unity of purpose'" if their individual acts "'concur as to time
and place and unite in proximately causing the injury[,]'" id.
(quoting Simpson v. Plyler, 258 N.C. 390, 393, 128 S.E.2d 843, 845
(1963)); the question is whether the injury is indivisible,
rendering apportionment of damages among the individual
tortfeasors impossible[,] Ipock, 73 N.C. App. at 186, 326 S.E.2d
at 275; Warren v. Colombo, 93 N.C. App. 92, 100, 377 S.E.2d 249,254 (1989) (when two or more proximate causes join to produce the
result complained of, defendants are jointly liable as
tortfeasors).
N.C. Gen. Stat. §§ 1-76 through 1-81 concern the proper venue
for certain types of actions. In cases involving a county
hospital, the action must be tried in the county where the cause,
or some part thereof, arose . . . . N.C. Gen. Stat. § 1-77
(1999); Coats v. Hospital, 264 N.C. 332, 334, 141 S.E.2d 490, 492
(1965). Nonetheless, the trial court may, in its discretion, move
the action to another county for the convenience of witnesses and
the promotion of the ends of justice. King v. Buck, Adjutant
General, 21 N.C. App. 221, 222, 203 S.E.2d 643, 644 (1974); see
N.C. Gen. Stat. § 1-77. Where a domestic private hospital
corporation is sued, N.C. Gen. Stat. § 1-79 dictates the county of
residence of the corporation for venue purposes. N.C. Gen. Stat.
§ 1-79 (1999). For all causes of action not specifically addressed
in Article 7, N.C. Gen. Stat. § 1-82 provides that such actions
must be tried
in the county in which the plaintiffs or the
defendants, or any of them, reside at its
commencement, or if none of the defendants
reside in the State, then in the county in
which the plaintiffs, or any of them, reside;
and if none of the parties reside in the
State, then the action may be tried in any
county which the plaintiff designates in his
summons and complaint, subject to the power of
the court to change the place of trial, in the
cases provided by statute . . . .
N.C. Gen. Stat. § 1-82 (1999). Thus, in a civil action in this
state where venue is not specifically designated by N.C. Gen. Stat.§§ 1-76 through 1-81, where the plaintiff is a nonresident and
the
defendants are residents, the proper venue for the action pursuant
to N.C. Gen. Stat. § 1-82 is any county in which defendants reside
at the commencement of the action. See, e.g., Chow v. Crowell, 15
N.C. App. 733, 735, 190 S.E.2d 647, 649 (1972).
Plaintiffs named seventeen separate defendants in their
complaint, of which seven (including, among others, Southeastern
Regional Medical Center, Dr. Robert A. Barefoot, Jr., Dr. Sunil
Sharma, and Emergency Physician Associates, Inc.) were alleged by
plaintiff to either be practicing principally or otherwise be
situated in Robeson County. The complaint stated that the alleged
negligence took place in Robeson and Cumberland Counties. The
complaint further alleged that defendants were negligent in their
treatment and care of Mr. Stewart, and that their combined and
individual negligence directly and proximately resulted in
temporary and permanent injuries to Mr. Stewart. The complaint did
not attempt to apportion and attribute Mr. Stewart's injuries and
damages to individual defendants. While the action was later
transferred to Cumberland County Superior Court, it was not
improper for plaintiffs to file the original complaint in Robeson
County.
[2]Having determined that the complaint properly joined all
defendants and was properly filed in Robeson County, we now turn to
the question of whether the Rule 9(j) extension was correctly
obtained in Robeson County, or whether, as defendants contend, the
extension must have been obtained in Cumberland County in order to
be effective as against the Cumberland County defendants. As notedabove, Rule 9(j) provides that the applicable statute of
limitations may be extended by a resident judge of the superior
court of the county in which the cause of action arose. Our
Supreme Court has held that, generally, a cause of action accrues
when the first injury [is] sustained. Mast v. Sapp, 140 N.C.
533, 537, 53 S.E. 350, 351 (1906). "When the right of [a] party is
once violated, even in ever so small a degree, the injury . . . at
once springs into existence and the cause of action is complete."
Id. at 540, 53 S.E. at 352; see also Matthieu v. Gas Co., 269 N.C.
212, 215, 152 S.E.2d 336, 339 (1967)(the cause of action accrues at
the time damages are first sustained).
As previously noted, the complaint alleges that [a]ll acts of
the Defendants complained of herein occurred in Robeson County and
Cumberland County, North Carolina. It is undisputed that Mr.
Stewart was first subjected to medical treatment in Robeson County
by defendants residing in Robeson County, and that Mr. Stewart was
subsequently transferred to a hospital in Cumberland County for
further treatment. Therefore, plaintiffs' cause of action as
against the Robeson County defendants, and therefore their cause of
action as against all defendants named in this unified action,
clearly first arose in Robeson County. See Mast, 140 N.C. at 537,
53 S.E. at 351; and Matthieu, 269 N.C. at 215, 152 S.E.2d at 339.
It is just as clear, and defendants do not contest, that the Rule
9(j) extension obtained in Robeson County was effective as to the
Robeson County defendants.
Defendants would nonetheless require that plaintiffs obtain aseparate Rule 9(j) extension in each county in which a
ny named
defendant is alleged to have committed negligence giving rise to a
cause of action and would require that plaintiffs file separate
actions in each such county. We decline to adopt such a strict
construction of Rule 9(j) and hold that where there are multiple
defendants, a single motion filed in the county where the cause of
action first arose will be effective to extend the statute of
limitations against all defendants ultimately named in the action.
Rule 9(j) was intended, in part, to protect defendants from
having to defend frivolous medical malpractice actions by
requiring that a qualified medical expert review a potential
plaintiff's complaint. Webb v. Nash Hosp., Inc., 133 N.C. App.
636, 639, 516 S.E.2d 191, 194, disc. reviews denied, 351 N.C. 122,
541 S.E.2d 471 (1999). In order to comply with Rule 9(j), the
collateral extension provision grants plaintiffs additional filing
time to gather the medical expertise that they need to support
legitimate claims. Thus the rule was intended both to protect
defendants from frivolous suits as well as to protect plaintiffs
with meritorious cases from losing their rights. See id. Keeping
in mind the general policy of liberality in construing our rules of
civil procedure, as well as the legislative intent behind Rule
9(j), we now review the 13 January 1998 extension motion and order
issued in Robeson County to determine whether it was effective as
to defendants in Cumberland County.
The Rule 9(j) extension in the instant case was properly
obtained in Robeson County at least insofar as it applied to theRobeson County defendants. Furthermore, the appellees were
properly joined in the action as additional defendants inasmuch as
they were alleged to be joint tortfeasors with the Robeson County
defendants causing a single, indivisible injury to plaintiff. The
motion filed by plaintiffs requesting the Rule 9(j) extension, and
the order entered by the resident superior court judge in Robeson
County granting the same, named both the Robeson County and the
Cumberland County defendants. An order is binding upon all parties
named therein and is valid if issued by a court with jurisdiction.
Manufacturing Co. v. Union, 20 N.C. App. 544, 549, 202 S.E.2d 309,
313, cert. denied, 285 N.C. 234, 204 S.E.2d 24 (1974); Graham v.
Graham, 77 N.C. App. 422, 424, 335 S.E.2d 210, 212 (1985).
As the Robeson County Superior Court had jurisdiction, the
extension order was valid and therefore effective as to all of the
joined defendants, including the Cumberland County defendants.
Upon the transfer of the action (at defendants' request) to
Cumberland County, the superior court therein was obligated to give
the Rule 9(j) extension full effect as to all named parties, absent
a showing by defendants of changed circumstances warranting a
modification of the order to effect justice or equity. The
Cumberland County Superior Court's refusal to recognize the
validity of the Rule 9(j) extension granted by the Robeson County
Superior Court violated the well-established principle of law in
North Carolina that, because no appeal lies from one superior court
judge to another, one superior court judge may not correct errors
of law committed by another. Smithwick v. Crutchfield, 87 N.C.App. 374, 376, 361 S.E.2d 111, 113 (1987).
[3]We further note that in Timour v. Pitt County Memorial
Hospital, 131 N.C. App. 548, 550, 508 S.E.2d 329, 330 (1998), we
held that the order granting a Rule 9(j) time extension was not
required to be served on the other party because a complaint had
not yet been filed. See also Webb, 133 N.C. App. at 639, 516
S.E.2d at 193-94 (rejecting defendants' argument that their due
process rights were violated by plaintiff's failure to name them in
the Rule 9(j) extension). Accordingly, parties seeking a Rule 9(j)
extension must neither name nor serve notice upon potential
defendants. Defendants' interpretation of Rule 9(j) would
nevertheless require the absurd result of forcing plaintiffs to
seek an extension in every county where every potential defendant
is located, regardless of whether or not those defendants are
ultimately included in the eventual complaint. Public policy
considerations require us to reject defendants' position and the
undue burden upon state judicial resources that separate extensions
in multiple counties would entail.
Finally, we note that defendants have failed to show how, if
at all, they would be prejudiced by an interpretation of Rule 9(j)
requiring a single, rather than multiple, extensions.
We hold that the Rule 9(j) extension entered in Robeson County
was effective as against all defendants therein named. The orders
of the trial court entered on 4 August 1999 granting defendants'
motions to dismiss are vacated, and we remand to the trial court
for further proceedings. Vacated and remanded.
Judge HUDSON concurs.
Judge GREENE concurs with separate opinion.
==================================
GREENE, Judge, concurring.
I write separately to state in somewhat different language
this Court's answer to the issue raised in this case: Does a
resident superior court judge have the authority to grant a Rule
9(j) statute of limitations extension affecting all defendants in
a case, even though some of the acts giving rise to the plaintiff's
claim arose outside the superior court judge's county of residence.
Rule 9(j) of the North Carolina Rules of Civil Procedure
provides that a resident judge of the superior court of
the county
in which
the [medical malpractice] 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. N.C.G.S. § 1A-1, Rule 9(j)
(1999) (emphases added). A cause of action arises in the county
where the acts or omissions that constitute the basis of the cause
of action occurred.
Pitts Fire Safety Service, Inc. v. City of
Greensboro, 42 N.C. App. 79, 81, 255 S.E.2d 615, 616 (1979). As
there can be multiple acts or omissions constituting the basis of
a single cause of action,
see 1 Am. Jur. 2d
Actions § 83 (1994), a
cause of action may arise in multiple counties. It thus follows a
Rule 9(j) statute of limitations extension can be issued in any
county where the acts or omissions constituting the basis of a
plaintiff's claim occurred and is valid in any such county as toall defendants named in the plaintiff's complaint.
See N.C.G.S.
67;
1A-1, Rule 9(j) (extension granted as to cause of action rather
than as to claims against individual parties);
Webb v. Nash Hosp.,
Inc., 133 N.C. App. 636, 639-40, 516 S.E.2d 191, 193-94 (extension
applies to all the defendants named in the plaintiff's complaint
regardless of whether those defendants were named in extension
order),
disc. review denied, 351 N.C. 122, --- S.E.2d --- (1999).
In this case, there is no dispute that the acts and omissions
constituting the basis of plaintiff's malpractice claim arose in
Robeson and Cumberland Counties. Thus, a resident superior court
judge in either Robeson County or Cumberland County had authority,
under Rule 9(j), to order an extension of the statute of
limitations as to all defendants who are alleged to have
contributed to plaintiff's injuries. Judge Floyd, a resident
superior court judge in Robeson County, therefore, had authority to
order an extension of the statute of limitation and this extension
is valid and binding on all defendants. It thus follows Judge
Cashwell's order dismissing plaintiff's claims against certain
defendants (whose alleged negligent acts occurred in Cumberland
County) must be reversed.
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