North Carolina Lawyers Weekly
Since plaintiff’s Rule 9(j) certification stated that some of her medical records had been reviewed by a physician, her failure to certify that the physician had reviewed all of the medical records relating to the alleged malpractice constituted a failure to strictly comply with the Rule 9(j) requirements and warranted dismissal of her complaint.
We affirm the trial court’s grant of defendants’ motion to dismiss on grounds that plaintiff’s Rule 9(j) certification was defective.
Plaintiff was admitted to defendants’ hospital for treatment of an accidental acetaminophen overdose. However, during her treatment plaintiff was given a dose of Mucomyst five times greater than the recommended dose, requiring an emergency dialysis. Plaintiff was informed that other known cases of Mucomyst overdose had resulted in severe brain damage and death and therefore plaintiff would also most likely die.
Plaintiff’s Rule 9(j) certification attached to her medical malpractice complaint stated that certain medical records had been reviewed by a physician reasonably expected to testify as an expert witness. Defendants moved to dismiss, arguing plaintiff failed to strictly comply with Rule 9(j). The trial court agreed that plaintiff’s complaint was not in compliance with the rule and granted defendants’ motion.
We agree that plaintiff’s Rule 9(j) certification was defective.
Prior cases have affirmed dismissal of medical malpractice complaints whose Rule 9(j) certifications failed to strictly conform to the statutory language of the rule. We therefore rule that plaintiff’s certification’s use of the phrase “certain records” instead of the phrase “all records”, as provided for in the rule, means that plaintiff’s complaint failed to fully comply with Rule 9(j).
We note that allowing expert witnesses to review only a select portion of a plaintiff’s medical records contravened the legislature’s express mandate that records be reviewed in their entirety. We therefore reject plaintiff’s due process argument and decline to rewrite the statute to permit plaintiff’s complaint to move forward despite its lack of strict compliance with Rule 9(j).
Affirmed.
Fairfield v. WakeMed (Lawyers Weekly No. 011-312-18, 11 pp.) (Davis, J.) Appealed from Wake County Superior Court (W.O. Smith, J.) Michael A. Jones for appellants; Carl Newman and Katherine Hilkey-Boyatt for appellees. N.C. App. Ct.
