North Carolina Appellate Court Dismisses Appeal of Nursing Home Wrongful Death Case for Failure to Comply with Procedural Rules

There are countless types of legal disputes that can arise from a loved one’s placement in a nursing home facility. Although we trust these facilities to look after our elderly loved ones when we are unable to, sometimes they abuse this trust and engage in negligent or reckless conduct that places our loved ones at risk. The dangers that face nursing home residents include lack of adequate supervision, various types of intentional abuse including physical, emotional, and sexual abuse, and medical malpractice. If your loved one was injured in a nursing home facility or lost his or her life as a result of inadequate care, contact the Asheville nursing home abuse and neglect lawyers at Maurer Law today to learn more about your legal rights and options.

Recently, the North Carolina Court of Appeal was asked to consider an appeal involving a man who fell and died as a result of his injuries while admitted as a patient at a nursing home facility. The administrator of the decedent’s estate brought a claim against the facility alleging that the facility breached its common law fiduciary duty and engaged in professional negligence. The defendants denied the allegations, moved to dismiss the claim, and asserted contributory negligence as an affirmative defense. The plaintiff later moved to amend his complaint to add new information.

The trial court denied the motion to amend, noting that the plaintiff had failed to comply with Rule 9(j) in the original complaint and the proposed amended complaint. Rule 9(j) requires a court to dismiss a complaint alleging malpractice against a healthcare provider unless the complaint provides a statement that an expert witness has reviewed the records and claims and is willing to testify that the defendant healthcare provider’s conduct fell below the standard of care.

For this reason, the court denied the motion to amend on the basis that the statute of limitations for beginning the cause of action had expired. The original pleading was deficient due to its failure to comply with Rule 9(j) and therefore did not constitute a filing that preserved the plaintiff’s claims. The defendant moved for summary judgment and the trial court granted the motion. The plaintiff then filed a notice of appeal.

Before it considered the merits of the plaintiff’s appeal, the appellate court first considered whether it had jurisdiction to hear the appeal. To appeal a matter, a party must file and serve a proper notice of appeal within a specified period of time after the entry of a judgment against that party. Appellate Rule 3(d) outlines the specific contents that the notice of appeal must include and requires the party filing the appeal to designate the judgment or order from which the appeal is taken.

Here, the plaintiff listed the denial of the motion to amend as the order to be appealed but did not designate the order granting the defendants’ motion for summary judgment. The order denying the motion for leave to amend the complaint is considered an interlocutory appeal that cannot be heard until there is a final judgment in the case. The appellate court ultimately dismissed the appeal for the plaintiff’s failure to comply with Appellate Rule 3(d) by not listing the order granting summary judgment in the notice of appeal as well.

If you believe that you have a civil claim against a nursing home facility for personal injury, medical malpractice, or abuse, the seasoned Asheville nursing home abuse and neglect lawyers of Maurer Law are standing by to assist you with assessing your options. We know just how stressful and emotional this situation can be for the victim and his or her family. We offer a free and confidential consultation to discuss your situation. Call our office today at 1-888-258-1087 or contact us online to get started.

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