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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.

But what does it mean to reasonably expect an expert fo qualify under Rule 702? Let’s look at Rule 702. It states, in part, that

(b)    In a medical malpractice action as defined in G.S. 90-21.11, a person shall not give expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the person is a licensed health care provider in this State or another state and meets the following criteria:

(1)    If the party against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:

a.     Specialize in the same specialty as the party against whom or on whose behalf the testimony is offered; or

b.     Specialize in a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients.

(2)    During the year immediately preceding the date of the occurrence that is the basis for the action, the expert witness must have devoted a majority of his or her professional time to either or both of the following:

a.     The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, the active clinical practice of the same specialty or a similar specialty which includes within its specialty the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients; or

b.     The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered, and if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.

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 specialist and what constitutes a majority of an expert’s professional time.

Specialist

Rule 702(b)(1) requires that if the doctor against whom testimony is offered is a specialist, then the expert must either (1) specialize in the same specialty or (2) specialize in a similar speciality which includes the procedure at issue and have experience treating similar patients. In Trapp v. Maccioli (1998), the North Carolina Court of Appeals looked at a case against an anesthesiologist where the plaintiff was injured as a result of the anesthesiologist inserting a central venous line. The plaintiff’s potential expert witness was not an anesthesiologist but an emergency medicine specialist. However, the potential expert witness had performed many central venous access procedures. The court held that the specialities were similar in that they both involved “the performance of central venous accesses” which was “a procedure that is not driven by the treatment that is to follow.” Therefore, there was evidence such that “a reasonable person armed with the knowledge of the plaintiff at the time the pleading was filed would have believed that [the potential expert] would have qualified as an expert under Rule 702.”

In Smith v. Serro (2007), the Court of Appeals held that the plaintiff could not have reasonably expected a rehabilitation specialist to qualify as an expert in a complaint against an orthopedic surgeon. The court reasoned that the doctors did not practice the same speciality nor did their specialities involve the same procedures or treatments. In fact, the orthopedist “referred plaintiff to [the rehabilitation doctor] for rehabilitation after [the orthopedist] treated plaintiff for his injuries.” Therefore, the plaintiff did not meet his burden under Rule 9(j).

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, PLLC (704) 714-1450 to discuss your options.

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