DONNA J. PRESTON, Administrator of the Estate of WILLIAM M. PRESTON, Plaintiff,
ASSADOLLAH MOVAHED, M.D., DEEPAK JOSHI, M.D., and PITT COUNTY MEMORIAL HOSPITAL, INCORPORATED, d/b/a, VIDANT MEDICAL CENTER, Defendants.
in the Court of Appeals 17 January 2019.
by Plaintiff from order entered 25 October 2017 by Judge
Jeffery B. Foster in Pitt County, No. 16 CVS 318 Superior
Edwards Kirby, LLP, by David F. Kirby, John R. Edwards, and
Mary Kathryn Kurth; Laurie Armstrong Law, PLLC, by Laurie
Armstrong; for Plaintiff-Appellant.
Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P.,
by John D. Madden and Eva Gullick Frongello, for
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. 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)
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.
Procedural History and Factual Background
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
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
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.
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.
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.
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.
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
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,
c. [F]ailed to recommend a cardiology consult for Mr. Preston
prior to his discharge from Vidant Medical Center with acute
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[.]
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.
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)[.]"
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. 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."
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.
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 ...