Filing a medical malpractice lawsuit in North Carolina carries specific legal requirements. Failure to follow said requirements may result in having your lawsuit dismissed (and possibly unable to refile). This article looks at the specific legal requirement to hire an expert to review the medical records prior to the lawsuit being filed. This rule, referred to as 9(j) has received significant litigation in recent years. This article examines a recent case dealing with Rule 9(j) and how it will effect cases moving forward.
North Carolina Supreme Court Ruling
The North Carolina Supreme Court rendered an important decision, which interpreted Rule 9(j), a special pleadings rule for medical malpractice claims. For those new to the practice medical malpractice actions, and those who have practiced in the field for some time, Rule 9(j) of the North Carolina Rules of Civil Procedure requires a complaint to include specific allegations that both medical care and medical records have been reviewed by an expert, who will thereafter be willing to testify as to the appropriate standards of care and that the appropriate standard of care was not met. This post will highlight two cases which hinged on this rule’s hyper technical reading and its inadvertent omission, that could have caused two plaintiff’s actions the horrible fate of dismissal.
Before reviewing the nuts and bolts of this case, for complaints alleging medical malpractice, attorneys should review N.C.G.S. § 1A-1, Rule 9(j). In the instance a plaintiff in a malpractice action does not include the “specific allegations” required by Rule 9(j), the action shall be dismissed. In Vaughn v. Mashburn, a party sought to amend a defective Rule 9(j). It should be noted that when the attorney timely filed this action, it included the specific allegation required by Rule 9(j); however, it failed to state medical records were reviewed. Vaughan v. Mashburn, ___ N.C. ___, ___, ___ S.E.2d ___, ___ (Aug. 17, 2018) (42PA17). The requirement that medical care and medical records be reviewed by an expert was not met.
As a background, the plaintiff in Vaughn underwent a laparoscopic hysterectomy at Lake Norman Regional Medical Center in Mooresville, North Carolina. The defendant performed the operation and was alleged to have “inappropriately” inflicted an injury and surgical wound to the Plaintiff’s right ureter which resulted in severe bodily injuries and other damages. The expert, who was originally contacted, performed roughly one hundred procedures similar to the one the plaintiff underwent. This expert was provided all the medical records which related to the plaintiff’s injury and was able to determine the defendant deviated from the appropriate standard of care for such an operation. The expert was also willing to testify to the fact.
This post is important for new and experienced attorneys alike because the attorney in Vaughn, included the language needed for a Rule 9(j) certification in its version before it was changed in 2011 by the General Assembly. This “pre-2011,” language did not require the certification to state medical records were reviewed. Instead, North Carolina General Statute § 1A-1, Rule 9 (2009) states a complaint alleging medical malpractice shall be dismissed unless, “the pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness.” N.C.G.S. § 1A-1, Rule 9 (2009) (emphasis added). Adhering to the pre-2011 language, the attorney in Vaughn would have been correct in its original Rule 9(j) certification.
After the complaint was filed, the statute of limitations passed, wherein the attorney attempted to amend the complaint to include the additional “post-2011” language. In 2011, the legislature amended Rule 9(j) to the effect a pleading should specifically assert “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[.] ” N.C.G.S. § 1A-1, Rule 9 (2017); see also Act of June 13, 2011, ch. 400, sec. 3, 2011 N.C. Sess. Laws 1712, 1713. The Court of Appeals affirmed the lower court’s ruling which denied the amendment.
The Supreme Court granted discretionary review of the case and its highly technical pleading error. Plaintiff argued that the complaint should be amended under Rule 15(a). The Court construed the legislative intent behind Rule 15 as a “liberal amendment process,” in that “decisions be had on the merits and not avoided on the basis of mere technicalities.” The Court also reviewed the legislative intent behind Rule 9(j), which acts as a gatekeeper to “prevent frivolous malpractice claims by requiring expert review before filing of the action.”
The Court held that that “a plaintiff in a medical malpractice action may file an amended complaint under Rule 15(a) to cure a defect in a Rule 9(j) certification when the expert review and certification occurred before the filing of the original complaint…[and]… such an amended complaint may relate back under Rule 15(c).” In reaching its decision, the Court explained that, “We again emphasize that in a medical malpractice action the expert review required by Rule 9(j) must occur before the filing of the original complaint. This pre-filing expert review achieves the goal of ‘weed[ing] out law suits which are not meritorious before they are filed.’…But when a plaintiff prior to filing has procured an expert who meets the appropriate qualifications and, after reviewing the medical care and available records, is willing to testify that the medical care at issue fell below the standard of care, dismissing an amended complaint would not prevent frivolous lawsuits. Further, dismissal under these circumstances would contravene the principle ‘that decisions be had on the merits and not avoided on the basis of mere technicalities.’” Mangum v. Surles, 281 N.C. 91, 98-99, 187 S.E.2d 697, 702 (1972))
On remand, the plaintiff is allowed to amend the complaint and proceed with her case on the merits rather than dismissed due to a hyper technical rule.
Another case, that hinged on the ruling in Vaughn is Locklear v. Cummings also decided in 2018. In that case, the North Carolina Supreme Court remanded and reversed a decision by the Court of Appeals whose majority converted plaintiff’s medical malpractice claim to an ordinary negligence claim. This was a slip and fall medical malpractice case where, similar to Vaughn, the attorney in Locklear and omitted the post-2011 language which requires medical records. The case was remanded to the lower court as a medical malpractice action; thus, Vaughn, saved the plaintiff a horrible fate of precedent in dismissal due to a hyper sense technicality.
If you or a loved one have been injured as a result of medical care you received, contact us at (704) 714-1450 to speak with an experienced medical malpractice attorney.