Dowd v. N.C. Department of Correction

* * * * * * * * * * *The undersigned have reviewed the prior Decision and Order based upon the record of the proceedings before Chief Deputy Commissioner Gheen. The appealing party has not shown good grounds to reconsider the evidence; receive further evidence; rehear the parties or their representatives; or amend the Decision and Order.

* * * * * * * * * * *Based upon the evidence of record, the Full Commission adopts the findings of fact found by the Deputy Commissioner as follows:

FINDINGS OF FACT1. On November 18, 2003, plaintiff, Artis L. Dowd, filed a Tort Claim Affidavit with the North Carolina Industrial Commission alleging medical negligence.

2. On February 24, 2004, a telephonic hearing on plaintiff's claim was held. At the hearing, plaintiff was granted ninety days from the filing date of the Order to file an affidavit from a qualified medical expert which stated that in the expert opinion of the affiant, the care of which plaintiff complained did not comply with the applicable standard of care. Plaintiff was also informed that the failure of plaintiff to provide the undersigned with the necessary affidavit within the time allowed would result in the dismissal of his claim.

3. On July 14, 2004, Defendant, North Carolina Department of Correction, filed a Motion to Dismiss in which it is noted that plaintiff failed to provide the required affidavit from a qualified medical expert within the allotted time period.

4. Plaintiff stated at the video conference hearing before the Chief Deputy Commissioner that he has not obtained a medical expert affidavit to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure.

* * * * * * * * * * *Based upon the findings of fact, the Full Commission concludes as follows:

CONCLUSIONS OF LAW1. Plaintiff has failed to provide the Industrial Commission with an affidavit from a qualified medical expert which states that the care of which plaintiff complains does not comply with the applicable standard of medical care. Accordingly, plaintiff has failed to demonstrate that he possesses sufficient evidence to prosecute his claim against defendant. N.C. Gen. Stat. § 1A-1, Rule 9(j).

* * * * * * * * * * *Based upon the foregoing findings of fact and conclusions of law, the Full Commission affirms the holding of the Deputy Commissioner and enters the following:

ORDER1. Plaintiff's claim is hereby DISMISSED WITH PREJUDICE.

2. No costs are taxed as plaintiff was permitted to file this civil action in forma pauperis.

This the 1st day of June, 2006.

S/____________ BUCK LATTIMORE CHAIRMAN

CONCURRING:

S/_______________ CHRISTOPHER SCOTT COMMISSIONER

S/_______________ DIANNE C. SELLERS COMMISSIONER