BOULA v. UNITED STATES OF AMERICA

Filing 22

ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN JR. on 11/7/2013; that an evidentiary hearing will be held as outlined in this Order. At that hearing, the parties shall address what Dr. Fekrat communicated to Plaintiff in regard to testifying on his b ehalf. This court will make findings of fact and resolve Defendant's motion to dismiss after the evidentiary hearing. This court therefore takes the recommendation of the Magistrate Judge that Defendant's motion to dismiss (Doc. 7 ) be granted and the related analysis as to Dr. Fekrat's willingness to testify (Doc. 17 at 6-7) under advisement pending the hearing. FURTHER that the findings of the Magistrate Judge that North Carolina Rule of Civil Procedure 9(j) appli es in this medical malpractice complaint asserted pursuant to the FTCA (Doc. 17 at 3-4) and that Crist should not be extended to the facts of this case (id. at 7-8) are ADOPTED. The Clerk is hereby directed to set this matter for an evidentiary hearing following consultation with the parties. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DONALD J. BOULA,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
Defendant.

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1:11CV366

ORDER
This matter is before this court for review of the
Memorandum Opinion and Recommendation (“Recommendation”) filed
on April 2, 2013, by the Magistrate Judge in accordance with 28
U.S.C. § 636(b).

(Doc. 17.)

In the Recommendation, the

Magistrate Judge recommends that Defendant‟s Motion to Dismiss
(Doc. 7) be granted.

The Recommendation was served on the

parties to this action on April 2, 2013.

Plaintiff filed timely

objections (Doc. 19) to the Recommendation, and Defendant
responded to the objections (Doc. 20).
This court is required to “make a de novo determination of
those portions of the [Magistrate Judge=s] report or specified
„proposed findings or recommendations to which objection is
made.”

28 U.S.C. § 636(b)(1).

This court “may accept, reject,

or modify, in whole or in part, the findings or recommendations
made by the [M]agistrate [J]udge. . . . [O]r recommit the matter
to the [M]agistrate [J]udge with instructions.”

Id.

This court has reviewed the Recommendation in its entirety
and has made a de novo determination which agrees with the
Magistrate Judge‟s Recommendation in certain respects and
differs in others.

This court will adopt the Recommendation in

part.1
This case presents a rare issue under North Carolina law:
the conditions under which a medical malpractice complaint must
be dismissed because a plaintiff failed to proffer an expert who
was “willing to testify” on his behalf.2

The Magistrate Judge

recommends dismissing Plaintiff‟s medical malpractice claim
because Dr. Sharon Fekrat, Chief of Ophthalmology at the Durham
VA Medical Center and one of Plaintiff‟s treating physicians, is
not willing to testify as an expert witness on Plaintiff‟s
1

Although this court finds that the Complaint should not be
dismissed on the current record, it does agree with many of the
legal conclusions reached in the Recommendation.
2

Under North Carolina law, a plaintiff in a medical
malpractice lawsuit must certify in his complaint that his
medical care has been reviewed “by a person who is reasonably
expected to qualify as an expert witness under Rule 702 of the
Rules of Evidence and who is willing to testify that the medical
care did not comply with the applicable standard of care.” N.C.
Gen. Stat. § 1A-1, Rule 9(j)(1).
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behalf.3

For the reasons addressed herein, this court finds that

an evidentiary hearing – as outlined in this Order - is both
proper and necessary before Defendant‟s motion to dismiss may be
resolved.
Plaintiff objects to the Magistrate Judge‟s Recommendation
on the following grounds (Pl.‟s Objections (Doc. 19)):
(1)

The application of North Carolina Rule of Civil

Procedure 9(j) in this case. (Id. at 5.)
(2)

The “failure . . . to apply the standard required of a

court in considering a Rule 12(b)(6) motion.”
(3)

(Id. at 6.)

The failure to consider Dr. Fekrat‟s email and

Plaintiff‟s affidavit submitted with his response to the motion
to dismiss. (Id. at 5-6.)
(4)

The finding that Dr. Fekrat‟s affidavit unequivocally

demonstrates that she was unwilling to testify. (Id. at 7.)
3

Defendant also contends that the evidence does not
support Plaintiff‟s Rule 9(j) certification because Dr. Fekrat
did not opine that “the medical care did not comply with the
applicable standard of care” in the email exchange on which
Plaintiff relies. (Def.‟s Resp. (Doc. 20) at 10 (citing N.C. R.
Civ. P. 9(j)).) Defendant did not raise this issue in its motion
to dismiss. In addition, Dr. Fekrat did opine that “[i]t is
probable that [Plaintiff‟s injury] was the result of either
carelessness, negligence, lack of proper skill, or error in
judgment on the part of the VA” (Def.‟s Mem. in Supp. of Mot. to
Dismiss, Decl. of Dr. Sharon Fekrat (“Fekrat Decl.”), attached
email (Doc. 8-2) at 3), and the email may not be the only
information Plaintiff received from Dr. Fekrat as to her medical
opinion.
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(5)

The Magistrate Judge‟s conclusion that Plaintiff‟s

knowledge or reasonable belief is irrelevant and failure to
consider what Plaintiff reasonably believed at the time he filed
his Complaint. (Id. at 7-8.)
(6)

The failure to apply the rule announced in Crist v.

Moffatt, 326 N.C. 326, 336, 389 S.E.2d 41, 47 (1990), that
“defense counsel may not interview plaintiff‟s non-party
treating physicians privately without plaintiff‟s express
consent.”

(Pl.‟s Objections (Doc. 19) at 10.)

These objections will be addressed in turn.4
Plaintiff objects to the application of North Carolina Rule
of Civil Procedure 9(j) to his claim under the Federal Tort
Claims Act (“FTCA”), contending that it is a state procedural
rule without a federal counterpart. (Id. at 5.)

When the

Recommendation and Plaintiff‟s objections were filed, the Fourth
Circuit had not yet directly addressed this issue.

Although it

did so in an unpublished opinion, a panel of the Fourth Circuit
has now found that federal district courts should apply Rule
9(j) in medical malpractice actions under North Carolina law.
4

Plaintiff also objects to the statement in the
Recommendation that Dr. Fekrat was “not Plaintiff‟s treating
physician.” (See Recommendation (Doc. 17) at 8.) This court
agrees with the parties that Dr. Fekrat was one of his treating
physicians. The statement in the Recommendation does not appear
to have affected the analysis.
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See Littlepaige v. United States, No. 12-1367, 2013 WL 2501744,
at *3 (4th Cir. June 12, 2013) (finding in an FTCA case “that,
where applicable, a Rule 9(j) certification is a mandatory
requirement for a plaintiff in a North Carolina medical
malpractice action”).
Even if the Fourth Circuit had not recently addressed this
issue, this court would apply Rule 9(j) in this case.

“The

district courts in this circuit are . . . unanimous that a Rule
9(j) certification is required to sustain a medical malpractice
action under the FTCA in North Carolina,” id. (collecting
cases), and this court finds those opinions persuasive.

See,

e.g., Lauer v. United States, Civil No. 1:12cv41, 2013 WL
566124, at *2-4 (W.D.N.C. Feb. 13, 2013).

“An action under the

FTCA may only be maintained if the Government would be liable as
an individual under the law of the state where the negligent act
occurred.”

Kerns v. United States, 585 F.3d 187, 194 (4th Cir.

2009) (citing 28 U.S.C. § 1346(b)(1)); see also Molzof v. United
States, 502 U.S. 301, 305 (1992) (“[T]he extent of the United
States‟ liability under the FTCA is generally determined by
reference to state law.”).

The Supreme Court of North Carolina

has stated that Rule 9(j) “require[s] physician review as a
condition for filing [a medical malpractice] action.”

Thigpen

v. Ngo, 355 N.C. 198, 203-04, 558 S.E.2d 162, 166 (2002)
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(emphasis added); see also id. at 202, 558 S.E.2d at 165
(“[M]edical malpractice complaints [in North Carolina] have a
distinct requirement of expert certification with which
plaintiffs must comply.”).

As such, it is a substantive

condition for establishing medical malpractice liability under
North Carolina law.

Because a plaintiff cannot maintain an

action for medical malpractice against an individual under North
Carolina law without including a certification that complies
with Rule 9(j), that rule is part of the state law for
establishing liability this court must apply in considering a
claim under the FTCA.
Plaintiff also objects to the Magistrate Judge‟s
“failure . . . to apply the standard required of a court in
considering a Rule 12(b)(6) motion.”
19) at 6.)

(Pl.‟s Objections (Doc.

Because Rule 9(j) is a substantive state law that

the FTCA “assimilates into federal law,” see Feres v. United
States, 340 U.S. 135, 142 (1950), this court must interpret and
apply that rule as a North Carolina court would.

See Iodice v.

United States, 289 F.3d 270, 275 (4th Cir. 2002).

Under North

Carolina law, it is “well established that even when a complaint
facially complies with Rule 9(j) by including a statement
pursuant to Rule 9(j), if discovery subsequently establishes
that the statement is not supported by the facts, then dismissal
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is likewise appropriate,” Ford v. McCain, 192 N.C. App. 667,
672, 666 S.E.2d 153, 157 (2008), “at least to the extent that
the exercise of reasonable diligence would have led the party to
the understanding that its expectation was unreasonable.”

Moore

v. Proper, 366 N.C. 25, 31-32, 726 S.E.2d 812, 817 (2012).5
Accordingly, because a plaintiff‟s “compliance with Rule 9(j)
requirements clearly presents a question of law to be decided by
a court, not a jury,” the court “must consider the facts
relevant to Rule 9(j) and apply the law to them.”

Phillips v. A

Triangle Women‟s Health Clinic, Inc., 155 N.C. App. 372, 376,
573 S.E.2d 600, 603 (2002).
Rule 9(j) functions as a condition for filing a medical
malpractice action.
166.

Thigpen, 355 N.C. at 203-04, 558 S.E.2d at

That condition would not serve its purpose if a court must

consider only the complaint itself to determine whether a
plaintiff has in fact complied with the statute.

Therefore,

this court finds that, in applying state substantive law, it may

5

Moore specifically addresses the portion of Rule 9(j) that
requires a medical malpractice plaintiff to produce a “person
who is reasonably expected to qualify as an expert witness.”
See N.C. Gen. Stat. § 1A-1, Rule 9(j)(1) (emphasis added). The
requirement that the person be “willing to testify” does not
include comparable language. However, this court finds that
Moore does have some relevance in the instant case.
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appropriately consider evidence outside the Complaint in
determining whether Plaintiff has satisfied Rule 9(j).
Plaintiff objects to the Magistrate Judge‟s failure to
consider his affidavit and to the determinative weight assigned
Dr. Fekrat‟s affidavit (Pl.‟s Objections (Doc. 19) at 8), and
this court agrees in light of the unique facts of this case.
Because “compliance or noncompliance with the Rule [9(j)] is
determined at the time of filing,” Moore, 366 N.C. at 31, 726
S.E.2d at 817, Dr. Fekrat‟s unwillingness to testify at this
time does not necessarily mean that Plaintiff did not include an
appropriate Rule 9(j) certification in his Complaint.

As

addressed more fully below, this court has been presented with
conflicting affidavits as to the determinative issue of whether
Dr. Fekrat was willing to testify at the time the Complaint was
filed.
This court also agrees with Plaintiff that what he
reasonably believed as to Dr. Fekrat‟s willingness to testify is
relevant to whether he complied with Rule 9(j) – at least to the
extent that any reasonable belief was developed through
reasonable diligence.

Although the North Carolina Court of

Appeals found in McGuire v. Riedle, 190 N.C. App. 785, 788, 661
S.E.2d 754, 757 (2008), that there is “no good faith exception”
to the certification requirement, that case is distinguishable
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from the present action.

In McGuire, the plaintiff admitted in

response to the defendant‟s interrogatory requests that the
opinions of the surgeon he relied on for his Rule 9(j)
certification were unknown.

Id. at 786, 661 S.E.2d at 756.

In

addition, during his own deposition, Plaintiff stated that he
could not recall either speaking with the surgeon regarding an
alleged breach of the standard of care or the surgeon having
ever agreed to testify on his behalf.

Id.

This court finds

that a North Carolina court would not apply McGuire to bar
consideration of what a plaintiff who had communicated with his
physician with the intent of obtaining expert testimony
reasonably believed as to that physician‟s willingness to
testify on his behalf.
In this case, Defendant submitted the affidavit of Dr.
Fekrat, in which Dr. Fekrat has admitted sending an email as
described by Plaintiff outlining Dr. Fekrat‟s opinion as to the
treatment of Plaintiff.

However, Dr. Fekrat also states in the

affidavit as follows:
4.
Plaintiff asked me to testify in this matter
on his behalf and I advised him I would not be his
expert witness.
5. I am not willing to testify that the medical
care at issue in this case did not comply with the
applicable standard of care in this case.
(Fekrat Decl. (Doc. 8-2) at 1.)
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In response to Dr. Fekrat‟s affidavit, Plaintiff submitted
an affidavit in which Plaintiff states as follows:
5. Before the complaint was filed in this
matter, I had an appointment with Dr. Fekrat on or
about March 24, 2011. At that appointment, I asked
her about the comments referred to in paragraph 4,
above, and whether she was willing to testify to those
opinions.
6. Dr. Fekrat told me that she would “stand by
my statement” and, if asked, would be willing to
testify to that.
(Pl.‟s Mem. in Opp‟n to Def.‟s Mot. to Dismiss, Ex. 1, Aff. of
Donald J. Boula (Doc. 9-1) at 2.)
Both affiants agree that Plaintiff asked Dr. Fekrat whether
she would be willing to testify; they differ as to her answer to
that question.

In light of the directly contradictory testimony

provided in the affidavits, this court finds that an evidentiary
hearing is necessary to resolve the contradictory statements
contained in the affidavits regarding Dr. Fekrat‟s willingness
or unwillingness to testify as of May 11, 2011 (the date of
filing of the Complaint).

The evidentiary hearing will be

limited to the issue of what was communicated between Plaintiff

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and Dr. Fekrat and any other facts necessary to the
determination of whether Plaintiff complied with Rule 9(j).6
Finally, Plaintiff contends that the contact between
Defendant‟s counsel and Dr. Fekrat, Plaintiff‟s treating
physician, was improper under Crist v. Moffatt, 326 N.C. 326,
389 S.E.2d 41 (1990).

(Pl.‟s Objections (Doc. 19) at 10.)

This

court is not persuaded by Plaintiff‟s objection.
First, this court is not convinced that a state rule
limiting defendants to formal methods of discovery when seeking
information from plaintiffs‟ nonparty treating physicians would
apply in FTCA cases.7

Under the FTCA, the United States is

subject to tort liability “in the same manner and to the same
extent as a private individual under like circumstances,” 28
U.S.C. § 2674, and only to the extent that a private person

6

Dr. Fekrat‟s email may properly be considered, but it
provides only limited support for a finding that Plaintiff
reasonably believed Dr. Fekrat was willing to testify on his
behalf. The existence of an opinion does not necessarily
indicate an individual‟s willingness to testify to that opinion.
7

The Crist rule is based on “grounds distinct from that of
physician-patient privilege.” Crist, 326 N.C. at 331, 389
S.E.2d at 44. If the rule were based on physician-patient
privilege, this issue would be more straightforward. Federal,
not state, privilege law applies in FTCA cases, see Tucker v.
United States, 143 F. Supp. 2d 619, 622-24 (S.D. W. Va. 2001),
and there is no physician-patient privilege under federal law,
Gilbreath v. Guadalupe Hosp. Found. Inc., 5 F.3d 785, 791 (5th
Cir. 1993).
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“would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.”
§ 1346(b)(1).

28 U.S.C.

Although “the extent of the United States‟

liability under the FTCA is generally determined by reference to
state law,” Molzof, 502 U.S. at 305, the Crist rule affects how
discoverable information may be obtained, not the conditions
under which liability may be imposed.

See Crist, 326 N.C. at

333, 389 S.E.2d at 45 (“[T]he prohibition against unauthorized
ex parte contacts regulates only how defense counsel may obtain
information from a plaintiff‟s treating physician, i.e., it
affects defense counsel‟s methods, not the substance of what is
discoverable.” (quoting Manion v. N.P.W. Med. Ctr. of N.E. Pa.,
Inc., 676 F. Supp. 585, 593 (M.D. Pa. 1987))).

The FTCA adopts

state law to “fill the interstices of federal law,” see Moor v.
Alameda Cnty., 411 U.S. 693, 701 & n.11 (1973); however, there
is no “interstice” to be filled by state law with regard to the
rules governing discovery.
Second, even if state law does apply, this court finds that
a North Carolina court would not apply Crist to the facts
presented in this case, that is, where the defendant‟s counsel
asks the plaintiff‟s treating physician, who is employed by the
defendant, whether the physician agreed to testify on the
plaintiff‟s behalf.

This is particularly the case where, as
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here, the treating physician participated in some role in
internal hospital processes related to the incident from which
the lawsuit arose.

(See Fekrat Decl. (Doc. 8-2) ¶ 3 (“The email

[on which Plaintiff relies] was sent in connection with Mr.
Boula‟s application for increased VA benefits as a result of the
loss of his eye.”).)
This court can find no record of a North Carolina court
having addressed whether an institutional defendant may only
communicate with one of its employees who was not involved in
the alleged medical malpractice through formal means of
discovery.

The Crist court cited several reasons for

prohibiting ex parte contact between defense counsel and a
plaintiff‟s nonparty treating physician: “patient privacy, the
confidential relationship between doctor and patient, the
adequacy of formal discovery devices, and the untenable position
in which ex parte contacts place the nonparty treating
physician.”

Crist, 326 N.C. at 336, 389 S.E.2d at 47.

The

privacy and confidentiality concerns are substantially, if not
completely, eliminated when the treating physician is employed
by the defendant medical center.

In finding that a state rule

similar to Crist did not bar ex parte communications between
defense counsel and a plaintiff‟s physician who was employed by

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the institutional defendant, the Arizona Court of Appeals
provided the following analysis:
The [employer-employee] relationship gives rise to
obligations of the employees to the employer that are
not present when the treating physician is not an
employee, and equally impose obligations on the
employer to the patients and employees. Because the
employer is inextricably involved in the relationship
between an employed physician and a patient, we cannot
conclude that public policy creates a wall between the
employees and their employer regarding that patient.
Phoenix Children's Hosp., Inc. v. Grant, 228 Ariz. 235, 239, 265
P.3d 417, 421 (Ct. App. 2011).

But see Aylward v. Settecase,

409 Ill. App. 3d. 831, 838, 948 N.E.2d 769, 774 (2011)
(prohibiting ex parte communications with a plaintiff‟s treating
physician “whose actions are not a potential basis for the
hospital‟s liability”).

This court finds that a North Carolina

court would adopt the reasoning in Phoenix Children‟s Hospital
and find that the Crist rule would not bar the communications at
issue in this case.
IT IS THEREFORE ORDERED that an evidentiary hearing will
be held as outlined in this Order.

At that hearing, the parties

shall address what Dr. Fekrat communicated to Plaintiff in
regard to testifying on his behalf.

This court will make

findings of fact and resolve Defendant‟s motion to dismiss after
the evidentiary hearing.

This court therefore takes the

recommendation of the Magistrate Judge that Defendant‟s motion
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to dismiss (Doc. 7) be granted and the related analysis as to
Dr. Fekrat‟s willingness to testify (Doc. 17 at 6-7) under
advisement pending the hearing.
IT IS FURTHER ORDERED that the findings of the Magistrate
Judge that North Carolina Rule of Civil Procedure 9(j) applies
in this medical malpractice complaint asserted pursuant to the
FTCA (Doc. 17 at 3-4) and that Crist should not be extended to
the facts of this case (id. at 7-8) are ADOPTED.
The Clerk is hereby directed to set this matter for an
evidentiary hearing following consultation with the parties.
This the 7th day of November, 2013.

________________________________________
United States District Judge

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