If you have ever litigated a medical-malpractice case, you likely know all about Rule 9(j). Rule 9—the repository of the exceptions to our “notice-pleading regime”—requires a med-mal plaintiff (who isn’t relying on the doctrine of res ipsa loquitur) to include certain magic words about expert review in the complaint. No magic words, no lawsuit.
But wait: what if Rule 9(j) is less about writing something specific in the complaint, and more about actually doing something specific before you file it?
In a unanimous opinion, our Supreme Court held in Vaughan v. Mashburn that Rule 9(j) is all about doing something specific: making sure that a qualified expert reviews the would-be plaintiff’s medical records and is convinced that the healthcare provider delivered sub-standard care. The timing of that review is critical; it must be completed before the complaint is filed.
To be sure, Rule 9(j) also requires that the plaintiff write something specific in the complaint, too. But the timing of that writing is less critical; drafting mistakes may be fixable after the complaint is filed, even if the statute of limitations has run.
In short, here’s where the law stands after Vaughan:
Allow me to explain this a bit.
Rule 9(j) is designed at least in part to weed out frivolous med-mal claims. The idea is to make sure that at least one qualified expert thinks the plaintiff has a case before the plaintiff files the complaint. Rule 9(j) accomplishes this aim by requiring the plaintiff to state in the complaint that a proper expert review has already occurred. If the plaintiff and the lawyer allege that the review happened, then the case can move forward.
But what if the attorney makes a mistake in the complaint and doesn’t get the magic words about the expert review quite right? Or forgets the magic words altogether?
Lawyers make mistakes. We also fix mistakes. Shoot, many of the most interesting procedural quandaries arise from our mistakes and attempts to fix them.
Indeed, that’s what Rule 15 (allowing amendment of pleadings) and Rule 41 (allowing voluntary dismissal and re-filing of complaints) are for, at least in part.
The Supreme Court has now held that a mistake in pleading a prior Rule 9(j) review can be fixed (1) by filing a voluntary dismissal under Rule 41 and then re-filing a proper complaint (Brisson); or (2) by filing an amended, proper complaint under Rule 15 (Vaughan). The mere fact that the statute of limitations would otherwise have run before a proper complaint is filed does not bar the suit forever.
But if the plaintiff actually fails to conduct the proper expert review before filing the complaint, the plaintiff is out of luck. That is a mistake that can’t be fixed, under Thigpen.
One last note for appellate-court watchers. The Court of Appeals opinion that was reversed in Vaughan included this line in ruling for the defendant:
We are again compelled by precedent to reach a harsh and pointless outcome as a result of a highly technical failure by Vaughan’s trial counsel.
That’s one way to get the Supreme Court’s attention.