CLOSING THE COURTHOUSE DOORS: RULE 9(J) AND RULE 702

By Mark R. Melrose

Published in the October, 2000 issue of Trial Briefs

by the North Carolina Academy of Trial Lawyers

The special pretrial pleading requirements of Rule 9(j) and the corresponding limitations on expert witnesses in Rule 702 are unconstitutional barriers designed by the legislature to make it more difficult for innocent victims of medical negligence to recover compensation for their injuries.[2]They are both legal malpractice quagmires for the unwary Plaintiff's attorney who may not be watching his step, and Rule 9(j) can be a monstrous club swung by savvy defense attorneys who are not subject to the same draconian requirements to keep meritorious cases from the jury. With all that being said, however, these medical malpractice procedural rules require special attention so long as they exist.[3]It should not be forgotten that although Rule 9(j) applies only to Plaintiffs, the vagaries of Rule 702 apply to both parties.

Rule 9(j) was originally offered as a legislative antidote to the perceived flood of frivolous medical negligence actions against health care providers. It essentially requires that the Plaintiff obtain a prefiling review by an expert reasonably expected to qualify as an expert witness under the newly revised provisions of Rule 702 of the Rules of Evidence. Failure to comply with Rule 9(j) results in a dismissal of the lawsuit, regardless of its actual merit. This legislative knee jerk response to the medical negligence defense industry's cries for Atort reform@ has run afoul of citizens' rights to gain access to courts in North Carolina with legitimate claims for relief.[4]Rule 9(j) has already been interpreted to restrict the judiciary's inherent equitable powers to favor the determination of claims upon the merits, and Rule 702 denies injured people the equal protection of the law if the tortfeasor just happens to be a physician.[5]To get some sense of the harsh consequences of Rule 9(j) and Rule 702, consider the following hypothetical:[6]

A tearful Ms. Merit enters the office of attorney Give M. Justice clutching a picture of her beautiful six year old daughter, Innocence. She apologizes for waiting nearly two years since her daughter's death, but she says she just couldn't bear to deal with her sorrow. She explains that she lives in Georgia just over the state line, but wanted to contact a North Carolina attorney since Innocence was treated in North Carolina. She says that her daughter had come home early from school with severe stomach pain and vomiting. Since they had just recently moved from North Carolina, Ms. Merit took Innocence immediately to a general practitioner in Immunity County, North Carolina where the family had been treated before. Dr. Unaccountable took a cursory history, performed no physical exam, diagnosed gastroenteritis, and sent Innocence home, missing all the warning signs of appendicitis. Innocence's condition worsened that night, and the next day Ms. Merit took her to see a pediatrician in Special County. The pediatrician, Dr. Limit, diagnosed suspected appendicitis, but tragically failed to obtain an adequate history. If she had, she would have learned that Innocence was highly allergic to the medication she prescribed for nausea. As a result of the ensuing allergic reaction, she ordered Innocence airlifted to a specialist at Duke. Unfortunately, somewhere between Special County and Duke, the nurse on the air ambulance failed to properly monitor the oxygen flow into Innocence's endotracheal tube resulting in severe hypoxia. A combination of all three medical errors resulted in the death of Innocence shortly after her arrival at Duke.

120 DAY EXTENSIONS

Since the two year statute of limitations has nearly expired, Rule 9(j)(3) allows the prospective Plaintiff (referred to in the Rule as the complainant) the opportunity to file an ex parte motion to extend the statute of limitations for a period not to exceed 120 days. The Court of Appeals has noted that this essentially allows medical negligence claims to be filed three years and four months (in general negligence actions not involving wrongful death with its two year statute of limitations) from when they arose if the court allows the motion.[7]The rationale behind this provision is to allow at least a four month period of time in which a prospective Plaintiff may obtain the requisite prefiling review by a qualified expert witness in order to prevent frivolous lawsuits.[8]That is the good news.

The bad news begins with a careful examination of the Rule. The motion to extend the statute of limitations must allege good cause for the relief, and the Court must further find that the ends of justice would be served by an extension.[9]Most superior court judges will routinely sign an Order extending the statute of limitations, but at least one judge has apparently refused to allow any Rule 9(j) extension motions.[10]The careful attorney will allege all relevant grounds as to why justice would be served by an extension of the statute of limitations including what steps the complainant intends to take during the additional allotted time period to investigate her claim. Various grounds for relief might include the inability to identify potential tortfeasors, illegible records, delays not attributable to the complainant, the efforts made by the Plaintiff to investigate her case, and protracted settlement negotiations.

It should not be grounds for a denial of a 9(j) extension motion that the complainant waited nearly three years before seeking expert review, since that was the obvious legislative compromise in its enactment. Otherwise, an injured person would have only three years less the time needed to obtain a prefiling review in which to pursue her claims. As a result, with any reasonable allegations in her motion, Ms. Merit should be entitled to her 120 days to seek out her expert witness reviews. It should be noted that no other tort victim in North Carolina must justify filing their lawsuit on the last day of the statute of limitations other than in medical malpractice actions. Using the entire period of limitations may be due to many reasons wholly unrelated to neglect or inattention.

Sweat begins to break out on attorney Justice's face as he realizes that this 120 extension can only be considered by Aa resident judge of the superior court of the county in which the cause of action arose.@[11]Somehow, before the statute of limitations expires at the end of the week, he must petition multiple resident superior court judges of each county where Innocence was negligently treated. The claim against Dr. Unaccountable in Immunity County appears straightforward, and so does the claim against the pediatrician in Special County. Justice sinks slowly into his chair as he considers where the claim arose against the critical care nurse on the helicopter. Justice stops himself as he reaches for the Rand McNally Atlas to trace the probable flight route, but wonders if he needs to petition every resident superior court judge between Special and Durham counties. He fleetingly considers retaining a helicopter pilot to correlate Innocence's vital sign records with the flight plan, but then decides that it might be best to put a quick call into his legal malpractice carrier.

Whether the drafters of Rule 9(j) actually considered all the consequences of this language, it must be unconstitutional on several grounds including equal protection, violation of the right to open courts, due process, and the right to trial by jury.[12]An individual's access to the North Carolina courts for relief when the statute of limitations has nearly expired may depend upon the bias of the resident superior court judge of the county where the negligent act occurred, and other matters wholly unrelated to the merits of the claim. Justice realizes that Ms. Merit may be able to investigate her claims for 120 days against some but not all of the tortfeasors responsible for Innocent's death. Justice was just beginning to rise out of his soft chair to begin identifying resident superior court judges when he realizes that Judge Goodheart, the only resident superior court judge in Special County, who might very well be inclined to sign the order in Special County, is gone on her annual vacation. It appears that Ms. Merit will not be entitled to an extension of her claim against the pediatrician.

An argument might be made that these potholes in Rule 9(j) are of no legal consequence, because the 120 day extension is a privilege granted for good cause only, and not a right. This argument misses the mark, however, since injured victims of health care providers' negligence have been legislatively categorized, and provided different levels of protection. For example, a victim of an overlooked surgical sponge may bring an action pursuant to Rule 9(j)(3) on a theory of res ipsa loquitur without a prefiling expert witness review.[13]As a result, those victims of medical negligence cases which are easily proven to a jury without the necessity of expert witness testimony have more time to file their complaints, since their statutory period is not shortened by the necessity of a prefiling expert review. Furthermore, in some counties the resident superior court judges view all actions against health care providers with suspicion. In those jurisdictions, Plaintiffs may always find their statute of limitations shortened by the necessity to have an outside expert witness review completed within the initial three year period, since it will be highly unusual to obtain a 120 day extension.

Particularly when the identity of all potential tortfeasors is unknown, or records are missing or being withheld, counsel should consider petitioning the court for a prefiling deposition pursuant to N.C. Gen. Stat. '1A-1, Rule 27. Since one of the goals of Rule 27 is to prevent injustice, these motions should be allowed. It should be noted that a request for a Rule 27 prefiling deposition does not toll the statute of limitations.

SERVICE OF RULE 9(J)(3) 120 EXTENSION ORDERS

In what appears to be settled law, orders which successfully allow the complainant an additional period of time not to exceed 120 days do not need to be served upon the potential adverse parties pursuant to Rule 5 of the Rules of Civil Procedure.[14]What is interesting about the decisions in Timour and Webb is the way those opinions just assumed that Rule 9(j) had no effect on the applicability on Rule 5 regarding service of process. The appellate analysis is more intense with consideration of the relationship between Rule 9(j) and Rule 15 which will be considered below.

FAILURE TO INCLUDE 9(J) CERTIFICATION, AND THE STATUTE OF LIMITATIONS

Several of the reported cases decided since the enactment of Rule 9(j) concern lawsuits that were filed without the requisite 9(j) Acertification.@ All complaints alleging medical malpractice by a health care provider defined in N.C. Gen. Stat. '90-21.12 must specifically assert that the case has been reviewed by an expert witness who is reasonably expected to qualify under Rule 702 of the Rules of Evidence, and testify as an expert witness in the case.[15]Any complaint which fails to contain this language Ashall be dismissed@ according to Rule 9(j). It should be noted, however, that the trial judge has the power to dismiss without prejudice. Those cases are not appealed, so it is unclear with what frequency judges are allowing Plaintiffs a second chance to draft the complaint correctly.

The only exception to the Acertification@ requirement is if the complaint alleges Afacts establishing negligence under the existing common-law doctrine of res ipsa loquitur.@[16]The better practice would be to not only allege facts establishing res ipsa loquitur, but to affirmatively plead Rule 9(j)(3) if the complaint is filed without a prefiling expert witness review. It is unlikely, however, that any experienced medical malpractice attorney would litigate even the best res ipsa loquitur case without an expert who would most likely find fault with the underlying facts alleged in the complaint such as leaving the byproducts of surgery in the patient. With that in mind, it makes sense to have the case reviewed before filing which will allow allegations under Rule 9(j)(1) and (3).

Regardless of the burdens of Rule 9(j), a medical malpractice case should only be filed after a favorable expert witness review except under exceptional circumstances. Medical negligence cases are extremely difficult and expensive to litigate, and they have notoriously low rates of success when compared with other types of tort litigation. Unless the underlying facts of the case can not be ascertained without the benefit of formal discovery in litigation, the attorney should know the medicine and the law, and have consulted with the experts before filing the claim.

The recent North Carolina Supreme Court decision in Brisson v. Santoriello, 528 S.E.2d 568 (2000) answers some, but not all of the concerns surrounding failures to include a 9(j) Acertification@ with regard to the statute of limitations. In Brisson the complaint was filed alleging medical malpractice within the three year statute of limitations, but without a Rule 9(j) Acertification.@ After the statute of limitations had expired, the Defendant moved to dismiss due to this omission, and in response the Plaintiff moved to amend her complaint alleging that the case had been reviewed by a physician, but that it was Ainadvertently omitted from the pleading.@[17]The trial court denied the Plaintiff's motion to amend, and then the Plaintiff voluntarily dismissed her complaint pursuant to Rule 41(a). She refiled three days later, and the trial court allowed the Defendant's motion judgment on the pleadings on grounds that the statute of limitations had expired.

The North Carolina Supreme Court reversed, and clearly held that so long as the original complaint was filed in Agood faith@ the Plaintiff was entitled to the Asavings@ provision of Rule 41(a).[18]The Court had no difficulty harmonizing Rule 9(j) and Rule 41(a). Justice Orr explained that there was no language in Rule 9(j) that purported to abolish the applicability of Rule 41(a) which applies to all other civil actions in North Carolina. The Court cited with approval the recent decision by the Court of Appeals which allowed a third party Plaintiff who failed to include a 9(j) Acertification@ to take a Rule 41(a) voluntary dismissal without prejudice and refile within one year even though Rule 14 requires leave of the court after 45 days.[19]In essence, Brisson allows a good faith claim to be filed up to four years and 120 days from when it the claim arose.

The Brisson Court did not directly decide the more difficult question of whether filing a complaint within the statute of limitations without having the case actually reviewed by a qualified expert witness, and then voluntarily dismissing pursuant to Rule 41(a)(1) to gain the extra year to get the review would constitute Abad faith.@ If so, then the case would not be resurrected by the Asavings@ provision of Rule 41(a)(1). Remarkably, the Brisson opinion fails to cite two Court of Appeals decisions dealing with complaints that were more substantively flawed.[20]In Robinson the Court of Appeals determined that the Rule 41(a)(1) Asavings@ provision could not be used because the Plaintiff admitted that no qualified expert witness had actually reviewed the case before the statute of limitations had expired. In Brisson the Court noted A...a meritorious complaint will not be summarily dismissed without benefit of Rule 41(a)(1), simply because of an error by Plaintiff's attorney in failing to attach the required certificate to the complaint pursuant to Rule 9(j).@[21]In Keith the Court rejected the argument that the Plaintiff could amend pursuant to Rule 15 to cure the complaint which was filed without a 9(j) Acertification,@ and apparently without an actual expert witness review before the statute of limitations expired.

Until the North Carolina Supreme Court addresses the bad faith issue directly, the other decisions from the Court of Appeals require that the actual expert witness review be conducted by a qualified expert prior to the expiration of the original statute of limitations, including as extended by Rule 9(j)(3). Assuming that the Plaintiff's attorney actually had the necessary review conducted but has inadvertently omitted the magic language from his complaint, he should still be able to amend the complaint pursuant to Rule 15 despite the troubling results in Robinson and Keith. He must be prepared, however, to take a voluntary dismissal without prejudice before the trial judge is permitted to actually rule upon the Defendant's request to involuntarily dismiss the complaint for omitting the Acertification.@

WHO IS A PROPER RULE 9(J) EXPERT?

Let us assume that Justice somehow managed to extend the statute of limitations everywhere the claims Aarose.@ He must now have the case Areviewed@ by expert witnesses that he reasonably expects to qualify under Rule 702. The key language in Rule 9(j) to combat alleged violations of the necessary prefiling review requirement is that the reviewing expert need not actually qualify at trial under the burdensome requirements of Rule 702, but only that she is reasonably expected to qualify. The leading case on this issue is Trapp v. Maccioli, 129 N.C. App. 237 (1998). The trial judge in Trapp was found to have improperly dismissed the complaint for an inadequate 9(j) review where the Plaintiff had an emergency medicine specialist review the Defendant surgeon's insertion of a central venous line. Given the uncontroverted confusion surrounding which experts actually will qualify as trial witnesses as discussed below, the Areasonable expectation@ standard should be liberally applied. Although some members of the judiciary may consider Rule 9(j) to stand for more, it is truly only a rule of civil procedure regarding the contents of the complaint in what is still supposed to be a notice pleading jurisdiction.

EXCEPTIONS TO THE PREFILING EXPERT WITNESS REVIEW

Just because the tortfeasor is a health care provider does not necessarily mean that the Plaintiff needs either a prefiling review or an expert witness at trial to testify regarding the standard of care. Rule 9(j) only applies to complaints alleging medical malpractice by a health care provider as that term is defined in N.C. Gen. Stat. '90-21.11 for a breach of the standard of care described in N.C. Gen. Stat. '90-21.12. If the claim involves ordinary negligence by a health care provider which does not involve the rendering of Aprofessional services,@ then Rule 9(j) does not apply.[22]Professional services encompass work that is predominately intellectual as distinguished from routine mental, manual, mechanical, or physical work.[23]Therefore, health care providers may still be sued without prefiling reviews or expert witness testimony in claims involving premises liability, dropping patients during transport, failing to observe and secure incompetent or debilitated patients, and any other claim in which the Defendant's occupation as a health care provider was not the true basis for the case. Also, as discussed above, claims involving the doctrine of res ipsa loquitur are exempted from the prefiling review requirements of Rule 9(j).

WHAT IS A SUFFICIENT RULE 9(J) REVIEW?

Injured victims of medical negligence scored a significant victory in a recent decision in which the adequacy of the actual Areview@ initially resulted in closing the door of the courthouse to the Plaintiff when the trial judge dismissed it with prejudice. Hylton v. Koontz, 2000 WL 780942 (N.C. App.) In this case the attorney for the Plaintiff did not provide the prefiling expert with any actual medical records, but instead related facts to an otherwise Rule 702 qualified expert by phone. In reversing, the Court of Appeals held that a Rule 9(j) Areview@ would be sufficient if an oral summary is provided to the expert predicated on such facts as the evidence would reasonably tend to prove. Unfortunately, there is a troubling footnote in Hylton which suggests that the case should later be dismissed pursuant to Rule 9(j) if through discovery it is revealed that the prefiling hypothetical facts were not predicated on what the evidence would reasonably tend to prove. No other type of claim in North Carolina would suffer the same fate of automatic dismissal late in the lawsuit for a pleading violation that was true when filed. The Court goes on to say that it may be acceptable through discovery for the expert to change his prefiling opinions if the proper facts were presented to him in the first place.

Obviously, even though Hylton provided relief to that Plaintiff, it is apparent that the appellate courts are distancing medical malpractices ever farther away from notice pleading. It is certainly preferable to send all pertinent medical records to a qualified expert before filing suit. The expert can also be advised of any extraneous facts that are relevant to the medical care the client received. Hylton will be particularly helpful in those cases in which the tortfeasors did not document the treatment provided, altered the medical records, or misrepresented the actual care provided. In those instances, the attorney can provide the alternative factual information to the prefiling expert in the form of a hypothetical.

One issue that has not been litigated to date is whether the Rule 9(j) expert must have a favorable opinion about causation. A careful reading of Rule 9(j) requires that the expert have an opinion that the health care provider failed to comply with the standard of care in N.C. Gen. Stat. '90-91.12. That statute, in part, allows a verdict against a health care provider if the trier of fact is satisfied that the care was not in accordance with the standards of practice. A plain reading of the statute should therefore allow a Rule 9(j) Acertification@ when the prefiling expert believes there was a violation of the standards of practice, but has no opinion about causation.[24]This makes sense since a successful Plaintiff in any negligence action is entitled to at least nominal damages. Similarly, a trial expert who is testifying about causation and not the standard of practice must only be qualified under the general language of Rule 702(a).[25]

DISCOVERY OF THE RULE 9(J) EXPERT

Assuming in our hypothetical that Justice obtained favorable reviews from his qualified expert witness and remembered to allege that compliance in his complaint, he will likely be faced with an early barrage of interrogatories regarding these reviews. Rule 9(j) allows the Defendant to serve up to ten written interrogatories to determine the Plaintiff's Aproof of compliance@ with the Rule. The reviewing expert must Averify@ the interrogatory responses on this topic provided by the Plaintiff. All other discovery requests including deposing the Rule 9(j) expert should be vigorously resisted unless the Rule 9(j) expert is later designated as a trial expert in the discovery scheduling order.[26]Justice will likely find himself facing interrogatories asking for such information as a list of every case in which the expert has testified, her gross income from testifying the previous 10 years, and any disciplinary action ever taken against the expert. None of these requests is relevant to proving that a prefiling review was actually conducted, and objections should be made.

One method to prove compliance is to send a brief letter to the expert attaching a copy of Rule 702, and N.C. Gen. Stat. '90-21.12 memorializing that the expert has told the Plaintiff's attorney prior to the lawsuit being filed that she is reasonably expected to qualify and testify as an expert, has reviewed the medical care in question, and believes that it violated the applicable standard of care. Have the expert sign that letter, and produce it to demonstrate compliance with the Rule. Alternatively, answering specific interrogatories regarding the expert's general training, speciality, current occupation, and date of review should not be problematic, at least under the existing rule.

What is very troubling about Rule 9(j) is that a Plaintiff must reveal the identity of a prefiling expert who does not necessarily have to testify at trial. The Rule merely requires that the prefiling expert be willing to testify, but they are not required to do so. The decision not to use a Rule 9(j) expert at trial should not seriously be grounds for dismissal, since the Plaintiff should be able to plan her trial strategy regardless of the contents of her notice pleadings. Obviously, the Defendant need not disclose consulting experts whom he elects not to call at trial. This gross disparity again raises serious constitutional concerns as described above, and counsel should make both statutory and constitutional objections at every important application of Rule 9(j).

WHO QUALIFIES AS AN EXPERT UNDER RULE 702?

The purported intent of Rule 702(b) was to arguably prevent North Carolina courts from being flooded with the testimony of professional witnesses who would say anything for money. Instead of relying upon the general language of Rule 702 which applies to all other litigation in the State, special rules were devised to theoretically insure the reliability and comptence of expert witness testimony in medical malpractice actions.

According to the recent decision of Formyduval v. Bunn, 2000 WL 780808 (N.C. App.) physicians appear to be divided into two categories; specialists and general practitioners. The Court held that a specialist is a physician who is either board certified, holds himself out to be a specialist, or limits his practice to a specific field of medicine. The basic rule is that only general practitioners or their medical school professors may testify against another general practitioner. In Formyduval all three of the Plaintiff's trial experts were disqualified under Rule 702(c) from testifying against the Defendant who is one of a diminishing number of general practitioners in North Carolina.[27]So instead of allowing the jury to weigh the testimony of whether the general practitioner was being held to an unreasonably high standard of care (which is covered in the pattern jury instruction), his treatment of the Plaintiff was immune from scrutiny except by another general practitioner or professor of Ageneral medicine.@

So in our hypothetical, Justice will be forced to retain not only a pediatrician, but also a general practitioner even though a pediatrician is perfectly capable as a result of medical school as to the standard of care for conducting a reasonable investigation into Innocence's stomach complaints at the general practitioner's office. So long as the expert has current familiarity with the standards of practice for a less qualified physician in the same or similar specialty, he should be able to offer an opinion for the jury. Any concern about the purported overqualification of the expert must pertain to the weight, but not to the admissibility of the evidence. This Rule accomplishes nothing more in this fact pattern than increasing the complexity and cost of medical malpractice litigation.

With respect to all other physicians who now appear to be considered specialists of one sort or another, Rule 702(b) sets forth several general requirements for testifying experts which can be summarized as follows:

1. The expert must specialize in the same speciality as the party against whom the testimony is offered, or

2. The expert must specialize in a similar speciality but be familiar with the procedure at issue.

3. In the year prior to the occurrence the expert must have spent a majority of his professional time in active practice in the same or similar specialty, or taught students in the appropriate accredited school.

Formyduval also held that specialists need not be board-certified provided they held themselves out as specialists or limited their practice to a specialty, yet there are many unanswered questions. Would Justice be able to use a pediatric gastroenterologist to testify against the pediatrician? Pediatric gastroenterology is a subspecialty of pediatrics, and the expert would therefore be double board-certified in pediatrics and pediatric gastroenterology. Do subspecialists lose their ability under Rule 702 to testify about the standard of care in the less prestigious speciality which they previously (and perhaps simultaneously) were qualified? There is no clear answer to these questions in the Rule. It is certainly easier to have the expert qualified under the Asame specialty@ Rule, but counsel should never ignore the fact that if the expert in a Asimilar specialty@ is familiar with the procedure, she may still testify.[28]

Also left unanswered is the Aactive practice@ requirement. The rule merely requires that the expert devote a majority of his or her Aprofessional time@ in the active practice in the proper field. The intent of this provision is to prohibit professional witnesses who earn their living primarily by testifying. Theoretically, however, a part-time physician would be permitted to testify in North Carolina if he spent 5 hours per week treating patients and 2 hours testifying, while another expert who spent 20 hours per week treating patients, and 25 hours per week testifying would be barred by the Rule. Which physician has more experience that would help the trier of fact?

The court in Formyduval noted that the Plaintiff did not make use of Rule 702(e) which allows an expert who does not meet (b) or (c) to testify based upon extraordinary circumstances. What is disturbing about Rule 702(e) is that Rule 9(j)(2) states that the motion must be filed with the complaint. Seemingly contrary language in Rule 702(e) allows either party to file a motion, but states that it must be heard by a resident judge of the county or judicial district where the case is pending. Unfortunately, until there is a challenge to most experts, the Plaintiff would not know she had to file a motion with the complaint. Once again, this language is contrary to the theory of notice pleadings. It seems to require a medical malpractice Plaintiff to determine his trial witnesses before filing, and then hope that the matter is not calendared before a visiting judge.

OTHER CONSIDERATIONS

Justice could decide that Rule 9(j) and Rule 702 might make the difference between success or failure of Ms. Merit's claim, and file her case in federal court based upon diversity. This option should certainly be considered in any case where substantial hurdles concerning prefiling experts might result in a complete inability to file suit. There are, of course, other obstacles in federal court which are beyond the scope of this article. In addition, in any case in which the qualifications of an expert are at issue, the Plaintiff should file a motion in limine in advance of trial, and seek to litigate the matter before trial. The Plaintiff should also file requests for admissions regarding the qualifications of proposed experts.

The convoluted requirements of Rule 9(j) and Rule 702 actually provide incentive for physicians to provide care inconsistent with good medicine, and they obstruct meritorious litigation. A doctor who realizes he provided inadequate medical treatment is likely to obscure his role or identity in the medical records in hopes that he will not leave a sufficient paper trail to allow the patient to find a qualified 9(j) prefiling expert.[29]Also, when multiple caregivers joined together to cause the injury, Rule 9(j) may only allow suit against those who have disclosed their identity in the records before the statute of limitations has expired. Medical charting, however, is not supposed to be done with an eye towards the courtroom, but to allow subsequent providers to have an accurate history of the care and condition of the patient.

CONCLUSION

Unless and until the courts recognize the numerous constitutional flaws in Rule 9(j) and Rule 702, Plaintiffs' attorneys must fully understand their consequences. Perhaps the best way to eliminate the inherent risks in these Rules is for the Plaintiff to file his claim against at least one Defendant as soon as he obtains a favorable 9(j) certification. He can then utilize the benefits of formal discovery to identify other potential tortfeasors. It is conceivable that this misdirected attempt to close the courthouse to injured victims may, in fact, accelerate medical negligence litigation in North Carolina. Perhaps the biggest irony in Rule 9(j) is that health care providers are not required to seek any outside review before mounting frivolous defenses, and filing general denials to valid claims. A thorough familiarity with the Rules, and aggressive litigation on constitutional and statutory grounds will hopeful level the playing field to achieve the goals of Justice.

_______________________________________________________________

[1]. Special thanks to Rebecca Britton for materials from her recent CLE manuscript she graciously provided.

[2]. N.C. Gen. Stat. '1A-1, N.C. R. Civ. Pro. 9(j) (Rule pertaining to pleading requirements, including medical malpractice actions); N.C. Gen. Stat. '8C-1, Rule 702 (N.C. R. Evid. regarding specific qualifications for expert witnesses in medical malpractice lawsuits).

[3]. The term Amedical malpractice@ will primarily be used in this article because that is the term found in the applicable statutes, but Amedical negligence@ is a more effective term for the courtroom. AMalpractice@ may cause some jurors to believe the Plaintiff must prove something akin to criminal culpability to prove her case.

[4]. Even a very minor legislative attempt supported by the North Carolina Academy of Trial Lawyers to remove the provision in Rule 9(j) requiring motions for 120 day extensions to be made in the county where the action arose failed during the last session which portends little likelihood of success for more substantive changes.

[5]. See Keith v. Northern Hospital District of Surry, 129 N.C. App. 402 (1998) (Rule 9(j) interpreted, in part, to limit a Plaintiff's otherwise liberal right to amend a complaint pursuant to N.C. Gen. Stat. '1A-1, Rule 15)

[6]. This hypothetical is entirely fictional, and is not intended to represent any real person.

[7]. See Timour v. Pitt County Memorial Hospital, 131 N.C. App. 548 (1999).

[8]. Webb v. Nash Hospitals, Inc., 133 N.C. App. 636 (1999).

[9]. The Administrative Office of the Courts has published AOC-CV-101 for use with Rule 9(j).

[10]. To date, the appellate courts have not defined Agood cause@ in the context of a 120 day Rule 9(j) extension.

[11] . Rule 9(j).

[12]. See Article 1, Section 19 of the North Carolina Constitution (equal protection and due process); Article 1, Section 18 (open courts); Article IV, Section 13 (right to jury trial).

[13]. See Tice v. Hall, 310 N.C. App. 589 (1984) (Evidence of forgotten surgical sponge was sufficient evidence to go to the jury despite expert testimony by Defendant that the Defendant did not violate the standard of care).

[14]. Timour v. Pitt County Hospital, 131 N.C. App. 548 (1998); Webb v. Nash Hospitals, Inc., 133 N.C. App. 636 (1999).

[15]. A sample 9(j)(1) Acertification@ allegation in the complaint could be as follows: AThe medical care alleged herein has been reviewed by a person reasonably expected to qualify as an expert pursuant to Rule 702 of the North Carolina Rules of Evidence, and who is willing to testify that medical care did not comply with the applicable standard of care.@

[16]. Rule 9(j)(3).

[17]. Brisson at 569.

[18]. North Carolina Rule of Civil Procedure Rule 41(a) allows a Plaintiff to voluntary dismiss her complaint without prejudice and commence a new action based on the same claim within one year after such dismissal even if the applicable statute of limitations may have expired in the interim.

[19]. Clark v. Visiting Health Professionals, 524 S.E.2d 605 (2000) (This decision also notes that not allowing medical malpractice [third party] Plaintiffs use the Asavings provision@ of Rule 41 would be contrary to the open courts requirement in Article 1, ' 18 of the North Carolina Constitution. This language should be cited as a basis for arguing other applications of Rule 9(j) violate the Constitution.

[20]. Robinson v. Entwistle, 132 N.C. App. 519 (1 999); Keith v. Northern Hospital District of Surry, 129 N.C. App. 402 (1998).

[21]. Brisson at 573.

[22]. Lewis v. Setty, 130 N.C. App. 606 (1998) (quadriplegic patient dropped by physician and live-in assistant when moved from examining table); Taylor v. Vencor, 525 S.E.2d 201 (2000) (Rule 9(j) does not apply to lawsuit against nursing home for failure to supervise and observe resident who burned herself); See also Norris v. Rowan Memorial Hospital, 21 N.C. App. 623 (1974) (decided before adoption of Rule 9(j)Cexpert witness not necessary).

[23]. Taylor at 203.

[24]. This might occur in a claim against an OB/GYN for a birth injury when the prefiling Rule 9(j) expert might find a violation of the standards of practice in the delivery, but be unable to testify regarding the consequences to the neonate.

[25]. Andrews v. Carr, 135 N.C. App. 463 (1999).

[26]. N.C. Gen. Stat. '1a-1, Rule 26(f1).

[27]. N.C. Health Data Professions 1998 Data Book.

[28]. Counsel should be creative, since the same Aprocedure@ may not involve testing or treatment, but may be tasks like taking an adequate history or consulting with another specialist.

[29]. The author currently has a case of an allegedly improper intubation in which the anesthesiologist failed to write a single note in the chart, admittedly for the first and only time in his career.