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:
(1) 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;
(2) 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 that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or
(3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.
However, the final paragraph of Rule 9(j) provides for a potential 120 extension of the statute of limitations in order to comply with the requirement of the Rule 9(j) certification. Specifically, it states
Upon motion by the complainant prior to the expiration of the applicable statute of limitations, a resident judge of the superior court for a judicial district in which venue for the cause of action is appropriate under G.S. 1-82 or, if no resident judge for that judicial district is physically present in that judicial district, otherwise available, or able or willing to consider the motion, then any presiding judge of the superior court for that judicial district may allow a motion to extend the statute of limitations for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension. The plaintiff shall provide, at the request of the defendant, proof of compliance with this subsection through up to ten written interrogatories, the answers to which shall be verified by the expert required under this subsection. These interrogatories do not count against the interrogatory limit under Rule 33.
The North Carolina Supreme Court has examined how this provision works to extend the statute of limitations. In Thigpen v. Ngo (2002), the Court found the legislative intent of Rule 9(j) to be instructive.
The legislature’s intent was to provide a more specialized and stringent procedure for plaintiffs in medical malpractice claims through Rule 9(j)’s requirement of expert certification prior to the filing of a complaint.
In a later case, Brown v. Kindred Nursing Ctrs. East (2010), the North Carolina Supreme Court returned to this issue. The Court quoted the Thigpen opinion and went on to reason that
To lessen the additional burden of this special procedure, the legislature permitted trial courts to extend the statute of limitations “for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule.”
The Brown Court reasoned that the legislature was attempting to strike a balance “between ensuring access to the courts for resolution of medical malpractice claims and protecting health care providers from potentially frivolous suits.”
In Thigpen, the plaintiff filed for a 120-day extension before the initial statute of limitations was up. Days before the new period would expire, the plaintiff filed a complaint which did not contain a Rule 9(j) certification. After the expiration of the 120-day extension period, the plaintiff filed an amended complaint which included the Rule 9(j) certification.
The Thigpen Court held that “once a party receives and exhausts the 120-day extension of time in order to comply with Rule 9(j)’s expert certification requirement, the party cannot amend a medical malpractice complaint to include expert certification” because “[a]llowing a plaintiff to file a medical malpractice complaint and to then wait until after the filing to have the allegations reviewed by an expert would pervert the purpose of Rule 9(j).” The Court further held that “Rule 9(j) expert review must take place before the filing of the complaint.”
The Court in Brown looked to Thigpen to answer “the question whether a complaint alleging medical malpractice may be amended after the expiration of the two-year statute of limitations to include an expert certification as required by North Carolina Rule of Civil Procedure 9(j).” In Brown, a plaintiff filed a complaint for medical malpractice before the initial statute of limitations had expired. Two days before the expiration of the statute of limitations, the plaintiff “filed a “Motion for 9 J Extension,” requesting a “120 day extension on filing a 9 J statement.”” The Court held that the “extension is for the limited purpose of filing a complaint; there is no language indicating that the time period can also be used to locate a certifying expert, add new defendants, and amend a defective pleading.”
Therefore, these holdings tell us that the 120-day extension must be filed before a complaint has been filed. The complaint, at the time of filing, must contain the Rule 9(j) certification. So what is a plaintiff to do if he has filed a medical malpractice complaint and it does not contain the Rule 9(j) certification, as the plaintiff in Brown had? The Brown Court suggested that the plaintiff should have voluntarily dismissed his nonconforming complaint and filed a new complaint with proper certification. If he needed additional time to locate a certifying expert, he could have moved to file for an extension before filing the new complaint.
If you have been injured from medical negligence, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450 to discuss your options.