The Court of Appeals of North Carolina (“North Carolina Appellate Court”), in its opinion dated April 21, 2020, stated, “we hold that the trial court erred in dismissing Plaintiffs’ claims against the Doctors based on a failure to comply with Rule 9(j) at this stage of the litigation. In short, Plaintiffs’ complaint complies with Rule 9(j) and there has been no discovery conclusively establishing that Plaintiffs were not reasonable in expecting their Rule 9(j) expert would qualify as an expert at the time they filed their complaint. Our holding should not be construed to foreclose a Rule 9(j) dismissal if future discovery justifies such dismissal.”
Rule 9(j) requires a plaintiff alleging a medical malpractice claim to specifically plead in her complaint that the medical care and all medical records pertaining to the care available to the plaintiff 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. Gen. Stat. § 1A-1, Rule 9(j) (2014).
The plaintiffs filed a motion which identified their Rule 9(j) expert as an emergency room doctor in Florida, where he lived. The defendants moved to dismiss the plaintiffs’ complaint, averring that the defendant doctors were not emergency room doctors but rather an internist and hospitalist, and that they did not provide any care to the decedent in the capacity of an emergency room doctor.
The trial court dismissed the plaintiffs’ complaint, stating that it was relying on the complaint, concluding that the plaintiffs’ complaint on its face regarding the expert’s review did comply with Rule 9(j) but (1) the CV attached to the plaintiffs’ unverified motion showed that the expert practiced in a different specialty than the defendants’ specialty as indicated in their affidavits; (2) there was nothing in the CV or otherwise which indicated that the expert was familiar with the standard of care in Halifax County; and (3) there was nothing in the CV or otherwise which indicated that the expert had experience admitting patients into a hospital or entering DNR orders to patients admitted to hospitals. The plaintiffs appealed.
North Carolina Appellate Court Opinion
The North Carolina Appellate Court stated, “we conclude that the trial court “jumped the gun” in determining that Plaintiffs failed to comply with Rule 9(j),” explaining “under Rule 9(j), to get past the gate into the courthouse, a plaintiff must have the opinion of an expert who at the time she files her complaint she reasonably expects will qualify under Rule 702. However, once in the courtroom, the plaintiff (typically) must offer the opinion of an expert who, in fact, qualifies under Rule 702 to get to the jury. Accordingly, it is possible for a plaintiff to get through the initial pleading Rule 9(j) gate with one expert and then later, even if the trial judge rules that her Rule 9(j) expert does not qualify under Rule 702, for that plaintiff to satisfy her burden of proof at trial through the testimony of another expert.”
To comply with Rule 9(j), the plaintiff must have exercised “reasonable diligence under the circumstances” to formulate a reasonable belief at the time she files her complaint that her certifying expert will qualify under Rule 702. “Though the CV outlined [the expert’s] extensive experience as an emergency room doctor, there is nothing in the CV which conclusively demonstrates that he has no expertise as an internist or hospitalist or otherwise that his expertise as an emergency room doctor does not include “the performance of the procedure that is the subject of the complaint and [ ] prior experience treating similar patients.” N.C. Gen. Stat. § 8C-1, Rule 702(b)(1)(b) (2014). Further, there is nothing in the CV to contradict Plaintiffs’ assertion in their complaint that [the expert] is familiar with the applicable standard of care, notwithstanding that the CV only indicates that [the expert] practices in Florida.”
The North Carolina Appellate Court stated, “at this point, Defendants have simply not met their burden of showing that they are entitled to a dismissal under Rule 9(j). The trial court must reasonably infer that it was reasonable for Plaintiffs to expect [the expert] would qualify as an expert under Rule 702, as they allege in their complaint, unless and until the discovery shows, even in the light most favorable to them, that they could not have so reasonably expected.”
Source Robinson v. Halifax Regional Medical Center, No. COA18-1300.
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