The Court of Appeals of North Carolina (“North Carolina Appellate Court”) held in its decision filed on December 4, 2018 that the trial court erred in dismissing the plaintiff’s medical malpractice complaint under Rule 9(j) and erred in denying her motion to amend.
The Underlying North Carolina Medical Malpractice Claim
During cardiovascular surgery on July 31, 2012, the plaintiff fell off of the surgical table and hit her head and the front of her body on the floor. As a result of the fall, the plaintiff allegedly suffered a concussion, developed double vision, injured her jaw, displayed bruises, and was battered down the left side of her body.
The North Carolina medical malpractice plaintiff had sought to amend her medical malpractice complaint so that it would comply with Rule 9(j) of the North Carolina Rules of Civil Procedure, which states:
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 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 …
The plaintiff conceded that her North Carolina medical malpractice lawyer inadvertently failed to expressly state the plaintiff’s pre-filing evaluation included a review of “all medical records pertaining to the alleged negligence” but argued that she actually complied with the substantive pre-suit review requirements of Rule 9(j). The plaintiff sought to amend her North Carolina medical malpractice complaint to comply with the pleading requirement in Rule 9(j), but the trial court refused to allow her to do so and dismissed her complaint.
The North Carolina Appellate Court referenced the August 17, 2018 decision by the North Carolina Supreme Court in a similar case in which the North Carolina Supreme Court reviewed the purposes behind Rule 15 and Rule 9(j) and held “a plaintiff in a medical malpractice action may file an amended complaint under Rule 15(a) to cure a defect in a Rule 9(j) certification when the expert review and certification occurred before the filing of the original complaint. Further, such an amended complaint may relate back under Rule 15(c).”
The North Carolina Supreme Court further stated in that case: “w]e again emphasize that in a medical malpractice action the expert review required by Rule 9(j) must occur before the filing of the original complaint. This pre-filing expert review achieves the goal of weed[ing] out law suits which are not meritorious before they are filed. But when a plaintiff prior to filing has procured an expert who meets the appropriate qualifications and, after reviewing the medical care and available records, is willing to testify that the medical care at issue fell below the standard of care, dismissing an amended complaint would not prevent frivolous lawsuits. Further, dismissal under these circumstances would contravene the principle that decisions be had on the merits and not avoided on the basis of mere technicalities.”
The North Carolina Appellate Court stated that it was following the North Carolina Supreme Court’s recent decision and therefore held “the trial court erred in dismissing Plaintiff’s complaint under Rule 9(j) and denying her motion to amend … we vacate the trial court’s orders dismissing Plaintiff’s complaint against Defendants and denying Plaintiff’s motion to amend and remand for proceedings not inconsistent with this opinion.”
Source Locklear v. Cummings, No. COA16-1015-2.
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