Medical Malpractice, Rule 9(j) and Rule 702(b) in North Carolina

Rule 9(j) of the North Carolina Rules of Civil Procedure requires a heightened pleading for complaints alleging medical malpractice. Under Rule 9(j)(1), any complaint that alleges medical malpractice must be dismissed unless:

The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have 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.

North Carolina courts have held that to satisfy Rule 9(j) the witness does not need to actually qualify as an expert, but he must reasonably be expected to qualify. “In other words, were the facts and circumstances known or those which should have been known to the pleader such as to cause a reasonable person to believe that the witness would qualify as an expert under Rule 702.” Let’s look at two issues that come up under Rule 702(b): which experts qualify to testify against a professional and what constitutes a majority of an expert’s professional time.

In 2012, the Court of Appeals looked at the case Braden v. Lowe, which involved a patient who was being treated for an infection in his toe. The infection got worse and the toe had to be amputated. The IV antibiotics were stopped for the amputation surgery pursuant to the hospital’s auto-stop policy. After the surgery, the doctor did not restart the antibiotics for a week. The patient suffered various infections and eventually died. The defendant argued that the procedure at issue was the amputation of the toe, and the plaintiff argued that the procedure at issue was the restarting of the antibiotics. The plaintiff’s expert had not been in an operating room in the last year but had regularly restarted antibiotics that had been stopped by auto-stop hospital policies. The court held that the expert could reasonably be expected to qualify as an expert under Rule 702.

Majority of Professional Time

Rule 702(b)(2) requires that the expert, during the previous year from the occurrence at issue, “have devoted a majority of his or her professional time” in clinical practice or instructing medical students. In Coffman v. Roberson (2002), the Court of Appeals held that a doctor retired from private practice who did volunteer teaching at a medical school could be reasonably expected to qualify as an expert under Rule 702. Although the teaching did not “take up a great deal of time,” because that was all he “did professionally during that time period,” the court held that this was “sufficient evidence to meet the requirements of Rule 702.”

In Cornett v. Watauga Surgical Group, P.A. (2008), the potential expert was not engaged in clinical practice for the majority of his professional time but was employed as a professor of surgery. The potential expert testified that in his role as professor of surgery “he spent significant time performing administrative duties such as attending committee meetings” and the trial court found that given the doctor’s standard 60 hours work week, the potential expert spent only 5 hours engaged in clinical practice or instruction, which was much less than a majority of his professional time.  Therefore, the Court of Appeals held that he could not reasonably be expected to qualify as an expert under Rule 702.

In Moore v. Proper (2011), the Court of Appeals looked at a case in which the plaintiff’s potential expert was a retired dentist who had practiced for over 40 years, but currently only spent 5% of his total time working. However, when he was working he worked exclusively in clinical work. The evidence showed that an average dentist worked 4 days a week, for 8 hours a day. The court stated that

The language of the statute does not require a “standard” workweek or give the courts any measure for the length of time a professional must work in order to compute the majority of an expert's “professional time.” The statutory language relies on a case by case analysis of the term. Thus, a professional workweek is a factual question which the trial court must determine in making its decision.

However, the trial court in that case did not make any findings to determine the number of hours which composed the expert’s professional work week. The Court of Appeals disagreed with “the trial court that “no reasonable person would have expected [the expert] to qualify as an expert witness.”

If you have been injured from medical negligence, contact an attorney at Rosensteel Fleishman Car Accident & Injury Lawyers (704) 714-1450 to discuss your options.