in the Court of Appeals 14 November 2018.
by plaintiff from order entered 26 February 2018 by Judge R.
Allen Baddour in Wake County No. 16 CVS 9401 Superior Court.
Epstein Law Firm, PLLC, by Andrew J. Epstein, for
McLamb & Weyher, L.L.P., by John W. Minier and David M.
Fothergill, for defendants-appellees.
Jocelyn Kennedy appeals the dismissal of her medical
malpractice claims against Dr. Kelly Prettyman and her
employer for failure to comply with Rule 9(j) of the Rules of
Civil Procedure. Dr. Prettyman is a general dentist and the
malpractice claims against her relate to the practice of
general dentistry. But the experts Kennedy identified in the
Rule 9(j) certification are a periodontist and an oral
surgeon, neither of whom regularly practices in the field of
explained below, the record supports the trial court's
determination that Kennedy could not reasonably have expected
these experts to testify to the standard of care applicable
to Dr. Prettyman. But, as Dr. Prettyman concedes, the trial
court's order does not contain the necessary findings of
fact required by our precedent. Accordingly, we vacate the
trial court's order and remand for further proceedings.
On remand, the trial court, in its discretion, may enter a
new order based on the existing record, or may conduct any
further proceedings that the court deems necessary for the
just resolution of this matter.
and Procedural History
Kelly C. Prettyman is a general dentist who works for Dr.
Charles Ferzli, DDS, P.A. d/b/a Smiles of Cary. In August
2013, Jocelyn Kennedy consulted Dr. Prettyman about a
toothache. At the appointment, Kennedy told Dr. Prettyman
that she previously had undergone surgery and radiation
treatment for oral cancer. Dr. Prettyman diagnosed Kennedy
with a severe periodontal defect and referred Kennedy to Dr.
Samuel DeAngelo, a periodontist who specialized in treating
DeAngelo developed a treatment plan for Kennedy that involved
extracting several of her teeth and placing multiple
implants. Later, Dr. Prettyman met with Dr. DeAngelo to
review the treatment plan and agreed to order and place a
temporary partial denture for Kennedy after the surgery. This
was the full extent of Dr. Prettyman's involvement in the
initial treatment planning. Although the proposed surgery
typically poses risks of osteoradionecrosis and other healing
issues in patients with prior oral radiation therapy, Dr.
Prettyman did not discuss these risks with Kennedy or with
September 2013, Dr. DeAngelo extracted eleven of
Kennedy's teeth and placed seven implants. That same day,
Dr. Prettyman delivered and placed a denture after the
surgery was complete.
early October 2013, Kennedy's surgical wound on her lower
gums opened up. When Dr. DeAngelo could not close up the
wound, he referred Kennedy to an oral surgeon, Dr. Jeffrey
Jelic, who sent her to the Center for Hyperbaric Medicine at
Duke University to receive hyperbaric oxygen treatments.
Kennedy's treating physicians at Duke diagnosed her with
osteoradionecrosis. Today, Kennedy continues to suffer severe
post-surgical complications, including difficulty speaking
and eating, permanent tooth loss, distortion of her face, and
a high pain level.
July 2016, Kennedy filed a malpractice suit against Dr.
Prettyman and her employer, as well as Dr. DeAngelo and
others involved in her treatment. The complaint alleged that
Dr. Prettyman was negligent when she placed the temporary
denture in Kennedy's mouth, without support, immediately
after her teeth were extracted; failed to discuss the
relevant risks with Kennedy beforehand; and failed to refer
Kennedy to another provider with more experience treating
patients with a history of oral cancer treatment.
Kennedy's complaint also included expert witness
certifications as required by Rule 9(j) of the North Carolina
Rules of Civil Procedure.
time Kennedy filed her complaint, she designated only two
experts: Dr. Jelic, the oral surgeon who referred her to
Duke, and Dr. Jeffery Thomas, her periodontist. Both experts
hold dental licenses and are board-certified in their
respective specialties. During depositions, both experts