By its decision filed on January 5, 2016, the Court of Appeals of North Carolina (“Appellate Court”) affirmed the lower court’s dismissal of a North Carolina medical malpractice lawsuit because the plaintiff had failed to follow a North Carolina Rule that requires that the medical malpractice complaint specifically comply with its pleading requirements.
Rule 9(j), which was amended in 2011, requires that a complaint alleging 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. N.C. Gen. Stat. § 1A-1, Rule 9(j) (2013) (italics added to reflect the amendments).
Rule 9(j) provides a means to extend the statute of limitations in order to provide additional time, if needed, to meet the expert review requirement: the trial court, in its discretion, may allow a motion to extend the statute of limitations for up to 120 days, but the intent is to allow additional time to find an expert to review the medical records so that they may be reviewed prior to filing the complaint to meet the standard of Rule 9(j); however, the extension may not be used to amend a previously filed complaint in order for it to comply with the Rule requirement.
The Appellate Court stated that a North Carolina medical malpractice complaint filed under Rule 9(j) must comply with the Rule at the time of filing: the appropriate expert review must take place before the filing of the complaint and the medical records and medical care must be reviewed by a person who is reasonably expected to qualify as an expert witness (an expert in a medical malpractice action must be a licensed health care provider, and if the party is a specialist, the expert must specialize in the same or a similar specialty as the party against whom the testimony is given, and the expert must either be involved in an active clinical practice or instructing students in a professional school).
In the case it was deciding, the Appellate Court noted that the plaintiff’s medical malpractice complaint alleged that medical records were reviewed by a “Board Certified” witness that said the care was below the applicable standard of care; however, the Appellate Court did not know whether the witness is a certified doctor or nurse, or even another health care professional, and the Appellate Court could not say whether the “Board Certified” person is of the same or similar specialty as would be required to testify that the defendant violated a standard of care. The Appellate Court held that the complaint did not properly allege that the medical records were reviewed by a person reasonably expected to qualify as an expert witness and it did not have enough information to evaluate whether this witness could reasonably be expected to qualify as an expert in this case.
The Appellate Court held that in medical malpractice cases, Rule 9(j) requires that the plaintiff obtain relevant medical records and have those medical records examined by a person who is reasonably expected to qualify as an expert witness prior to the filing of the initial complaint or within 120 days of the filing of the complaint should the plaintiff ask for an extension of time pursuant to Rule 9(j). Because the North Carolina legislature has required strict compliance with Rule 9(j), if a plaintiff fails to properly plead his case in his complaint, it is subject to dismissal without the opportunity for the plaintiff to amend his complaint under Rule 15(a).
The Appellate Court further held that the plaintiff in the present case could not be helped by voluntarily dismissing the defective complaint: a voluntary dismissal by judicial order under Rule 41(a)(2) results in a dismissal without prejudice and generally allows a new action based on the same claim to be commenced within one year of the dismissal so long as the original claim was brought within the applicable statute of limitations. In order to re-file after a voluntary dismissal, the action must be commenced within the time prescribed therefor: an action is only “commenced” under Rule 9(j) if it has been properly reviewed by an expert at the time of filing. The Appellate Court held that because the plaintiff did not file the complaint with the proper Rule 9(j) certification before the running of the statute of limitation, the complaint cannot be deemed to have commenced within the statute (an action is only “commenced”” under Rule 9(j) if it has been properly reviewed by an expert at the time of filing).
Source Alston v. Hueske, No. CA 15-207.
If you or a loved one may have been harmed as a result of medical malpractice in North Carolina, you should promptly find a North Carolina medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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