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Preston v. Movahed

Court of Appeals of North Carolina

March 5, 2019

DONNA J. PRESTON, Administrator of the Estate of WILLIAM M. PRESTON, Plaintiff,

          Heard in the Court of Appeals 17 January 2019.

          Appeal by Plaintiff from order entered 25 October 2017 by Judge Jeffery B. Foster in Pitt County, No. 16 CVS 318 Superior Court.

          Edwards Kirby, LLP, by David F. Kirby, John R. Edwards, and Mary Kathryn Kurth; Laurie Armstrong Law, PLLC, by Laurie Armstrong; for Plaintiff-Appellant.

          Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by John D. Madden and Eva Gullick Frongello, for Defendant-Appellee.

          COLLINS, JUDGE.

         Plaintiff Donna Preston, decedent William M. Preston's widow and estate representative, appeals an order dismissing her wrongful death action alleging medical malpractice against Defendant Assadollah Movahed, M.D.[1] After a compliance hearing, the trial court concluded the facially valid Rule 9(j) pre-lawsuit medical expert review certification in Plaintiff's medical malpractice complaint was factually unsupported when it was filed, which was two days before the expiration of the applicable statute of limitations period. Therefore, the trial court granted Defendant's motion to dismiss the complaint for substantive Rule 9(j) noncompliance.

         On appeal, Plaintiff contends the trial court erred by dismissing her complaint because the certificate substantively complied with Rule 9(j). We disagree. Because competent evidence supported the trial court's factual findings, which in turn supported its legal conclusions and ultimate decision that the Rule 9(j) certificate was factually unsupported at the time Plaintiff had filed her complaint and before the statute of limitations period had expired, we affirm the trial court's order dismissing her complaint for substantive Rule 9(j) noncompliance.

         I. Procedural History and Factual Background

         Plaintiff's complaint and later medical expert deposition testimony reveals the following facts: Around 8:30 a.m. on 3 February 2014, William M. Preston (Preston) presented to Vidant Medical Center's emergency department complaining of chest pain and shortness of breath. Preston's emergency room electrocardiogram (EKG) test revealed abnormalities consistent with myocardial ischemia, a condition where not enough blood reaches the heart. That evening, Preston was admitted to the hospital's observation unit under the care of attending physician Pranitha Prodduturvar, M.D. After Dr. Prodduturvar examined Preston, she ordered a cardiac workup including, inter alia, a nuclear stress test (NST).

         Around noon the next day, hospital providers administered Preston's NST. An NST involves injecting a patient with radioactive material and subjecting him to cardiovascular exercise in order to obtain nuclear images of the heart revealing blood flow while under stress and at rest. Dr. Movahed, the hospital's attending nuclear cardiologist, who was neither acting as a formal cardiology consult nor had personally examined Preston, was assigned to interpret Preston's NST results. Interpreting the results of an NST involves assessing the treadmill stress test and EKG tracings taken of the heart, in conjunction with analyzing the nuclear cardiology images.

         Following the test, Dr. Movahed orally reported his interpretation of Preston's NST to cardiology fellow Deepak Joshi, M.D., with instructions for Dr. Joshi to communicate his findings to Preston's then-attending physician, Neha Doctor, M.D. In Dr. Movahed's later-dictated report, he noted "a perfusion defect in [Preston's] heart . . . might be due to significant gas in the stomach, but . . . he could not rule out ischemia as a possible cause of the abnormality." Dr. Movahed also suggested, based upon Preston's abnormal NST, "[o]ne may consider a [coronary computed tomography angiogram, also known as a] CTA," which is an additional cardiac test to evaluate suspected coronary artery disease.

         Subsequently, on 4 February 2014, attending physician Dr. Doctor personally examined Preston and ordered his discharge from the hospital. Preston was instructed to follow up with his primary care physician about ordering an MRI to assess potential neurological causes for his symptoms and was scheduled for an outpatient cardiology follow-up on 20 February 2014.

         On 6 February 2014, Preston was examined by his primary care physician, who ordered the MRI. On 10 February 2014, Preston returned to his primary care physician to discuss the MRI results, which revealed no neurological explanation for Preston's symptoms. On 13 February 2014, six days before his scheduled outpatient cardiology follow-up, Preston suffered a fatal heart attack in his home.

         On 25 November 2015, Plaintiff filed a wrongful death medical malpractice complaint against Dr. Prodduturvar and Dr. Doctor, and four medical entities associated with Vidant Medical Center (first complaint). Plaintiff alleged the physicians were medically negligent in their care of Preston during his admission to the hospital and their failure to order further immediate testing and medical treatment before he was discharged from the hospital. Neither Dr. Movahed nor Dr. Joshi were named in the first complaint.

         On 12 February 2016, two days before the applicable statute of limitations period expired, Plaintiff filed a second wrongful death medical malpractice complaint, this time naming Dr. Movahed and Dr. Joshi, and their employer, Pitt County Memorial Hospital, Incorporated, d/b/a Vidant Medical Center (second complaint). The second complaint asserted Dr. Movahed was negligent in that he

a. Failed to accurately interpret and communicate the findings and significance of diagnostic tests performed on Mr. Preston;
b.[F]ailed to adequately, appropriately and timely suggest and perform a full assessment and work-up to rule out life-threatening acute coronary artery disease for a patient at high risk for the disease, including, but not limited to, cardiac catheterization;
c. [F]ailed to recommend a cardiology consult for Mr. Preston prior to his discharge from Vidant Medical Center with acute chest pain;
d. [F]ailed to conduct an adequate assessment of Mr. Preston's risk factors for coronary artery syndrome;
e. [F]ailed to prescribe any treatment to Mr. Preston for possibility of acute coronary artery disease before discharging him from the hospital; [and]
f. [F]ailed to comply with standards of practice among physicians and cardiolovascular [sic] disease specialists with the same or similar training and experience in Pitt County, North Carolina, or similar communities in 2014[.]

         The complaint also included the following Rule 9(j) certificate:

the medical care of the defendant and all medical records pertaining to the alleged negligence of this defendant that are available to the plaintiff after reasonable inquiry have been reviewed before the filing of this complaint by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care.

         On 25 April 2016, Defendant filed his answer to the second complaint, denying all allegations of negligence and breach of the standard of care, and moving to dismiss Plaintiff's action, inter alia, "[i]f discovery indicates that Plaintiff did not comply with the requirements of Rule 9(j)[.]"

         On 9 August 2016, in response to Defendant's Rule 9(j) interrogatories, Plaintiff identified Stuart Toporoff, M.D., "a physician specializing in the area of cardiology," and Andy S. Pierce, M.D., "a physician specializing in the area of internal medicine and hospitalist care," as her Rule 9(j) pre-review medical experts. Attached to her response, Plaintiff included, inter alia, Dr. Toporoff's curriculum vitae and a Rule 9(j) pre-review medical expert affidavit signed by Dr. Toporoff.[2] In his affidavit, Dr. Toporoff stated he had "reviewed the medical records related to medical care provided to William Preston during his presentation with chest pain to Vidant Medical Center on February 3-4, 2014" and had "been provided a packet of information . . . about the training and experience of . . . [Dr.] Movahed" and "the Answer of Defendant Neha Doctor, MD" to the first complaint. Based upon his review of these materials, Dr. Toporoff opined that the "medical care provided to William Preston during his admission to Vidant Medical Center . . . for chest pain, failed to comply with the applicable standard of care for the evaluation of a patient with chest and arm pain who presented with Mr. Preston's signs, symptoms and medical history" and "expressed [his] willingness to testify to the above if called upon to do so."

         On 15 December 2016, Plaintiff submitted an expert witness designation, identifying her Rule 9(j) experts Dr. Toporoff and Dr. Pierce, as well as nuclear cardiologists Mark I. Travin, M.D., and Salvador Borges-Neto, M.D.

         On 23 March 2017, Defendant deposed Dr. Toporoff. During his deposition, Dr. Toporoff confirmed that Dr. Movahed's involvement in Preston's care was limited to interpreting his NST results. Dr. Toporoff also admitted that, as a non-nuclear cardiologist who never interpreted the results of an NST, he was incompetent to qualify as a nuclear cardiologist against Dr. Movahed or criticize his interpretation of the nuclear imaging component of Preston's NST. But, Dr. Toporoff testified that he felt qualified as a clinical cardiologist who interpreted EKG tracings when administering treadmill stress tests to patients and thus comfortable stating Dr. Movahed's interpretation of the EKG component of Preston's NST fell below the applicable standard of care. However, Dr. Toporoff further testified that, when initially consulted to review the case before Plaintiff filed her first lawsuit against the physicians, he told Plaintiff not to name Dr. Movahed because Dr. Toporoff refused to testify against him unless Plaintiff retained a nuclear cardiologist competent and willing to testify that Dr. Movahed's interpretation of the nuclear imaging component of Preston's NST fell below the applicable standard of ...

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