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Kennedy v. Deangelo

Court of Appeals of North Carolina

February 19, 2019


          Heard in the Court of Appeals 14 November 2018.

          Appeal by plaintiff from order entered 26 February 2018 by Judge R. Allen Baddour in Wake County No. 16 CVS 9401 Superior Court.

          The Epstein Law Firm, PLLC, by Andrew J. Epstein, for plaintiff-appellant.

          Yates, McLamb & Weyher, L.L.P., by John W. Minier and David M. Fothergill, for defendants-appellees.

          DIETZ, Judge.

         Plaintiff 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 general dentistry.

         As 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.

         Facts and Procedural History

         Dr. 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 these conditions.

         Dr. 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 Dr. DeAngelo.

         On 19 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.

         By 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.

         On 22 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.

         At the 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 ...

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