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Court of Appeals: Magic Words Still Have Their Place in Med-Mal Actions

The Court of Appeals again reminded medical-malpractice litigants this week of the importance of including certain magic words about expert review in the complaint. In Fairfield v. WakeMed et al., the Court reconfirmed strict compliance with the heightened pleading standard in medical malpractice cases and affirmed the trial court’s dismissal of an action for straying too far from the language required by Rule 9(j).

Wait, didn’t we just write about judicial leniency with Rule 9(j) mistakes?  Yes, we did, in discussing the courts’ power to allow amendments of med-mal pleadings under certain circumstances.

But don’t forget that Rule 9(j) imposes both a substantive requirement and a facial requirement. Substantively, the plaintiff must make sure that a qualified expert actually finds merit in the plaintiff’s medical-malpractice action before filing.  The rule also includes a facial requirement:

(j)         Medical malpractice. – Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall 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 a 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.

Which brings us to Fairfield, where the Court made it clear once again that this pleading requirement will be strictly construed.  In Fairfield, the plaintiffs alleged as follows:

Counsel for the Plaintiffs hereby certify and affirm, that . . . certain medical records and the medical care received by Mrs. Fairfield has been reviewed by a physician 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 standard of care provided by Defendants did not comply with the applicable standard of care.

Look carefully at this certification and you’ll see how closely the language tracked the statutory language, with one exception: whereas the Rule refers to “all medical records . . . available to the plaintiff,” the Fairfield plaintiff referred only to “certain medical records.”

That tiny difference in wording masks a much larger failing by Plaintiffs—a facial and substantive failure to comply with Rule 9(j).  As the Court of Appeals explained:

Allowing a plaintiff’s expert witness to selectively review a mere portion of the relevant medical records would run afoul of the General Assembly’s clearly expressed mandate that the records be reviewed in their totality. Rule 9(j) simply does not permit a case-by-case approach that is dependent on the discretion of the plaintiff’s attorney or her proposed expert witness as to which of the available records falling within the ambit of the Rule are most relevant.  Instead, Rule 9(j) requires a certification that all “medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed” before suit was filed.

Because the certification did not conform to this requirement, the court affirmed the dismissal on the basis of the Plaintiffs’ failure to comply with Rule 9(j).

The Court also briefly addressed Plaintiffs’ claim that the application of Rule 9(j) violated their due-process rights. Although the Court noted that Plaintiffs had abandoned this argument by failing to cite any legal authority in support of it, it also concluded that the argument failed substantively because it would require the Court to rewrite the statutory language adopted by the General Assembly, something that “is antithetical to the proper role of a court in our system of government.”  Noting that Rule 9(j) can result in “harsh outcomes,” the Court nonetheless noted that “[a]ny modification of the pleading requirements contained therein must come from the legislative branch rather than the judicial branch.”

The Court’s opinion is a reminder to plaintiffs and defendants alike that both careful drafting as well as substantive compliance with Rule 9(j) are critical to whether a court ever reaches the merits of a medical-malpractice case.

–Liz Hedrick

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