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Another med-mal case bounced over certification rules

A few magic words and a dramatic puff of smoke will give a nice theatrical flair to any disappearing act. But magic words of a different sort did a bit of a reappearing act before the North Carolina Court of Appeals this month.

The court was once again asked to interpret the “magic words” provision of Rule 9(j) of the state’s Rules of Civil Procedure, which places special requirements on plaintiffs bringing medical malpractice cases. And once again, the court has tossed out a plaintiff’s suit for failing to strictly comply with the rules—in this case because the plaintiff’s complaint said that an expert witness had reviewed some of the plaintiff’s medical records, rather than all of the records.

Since 2011, Rule 9(j) has required med-mal plaintiffs to certify that all of the relevant and available medical records pertaining to the alleged negligence have been reviewed by someone reasonably expected to qualify as an expert witness. The rule, which is intended to thwart frivolous claims, has since been a frequent topic of litigation in the state’s appellate courts, which have strictly enforced the rule’s dictates.

In a case decided Oct. 2, Starla and Lenny Fairfield had alleged that WakeMed Health & Hospitals had accidentally given Starla an overdose of acetaminophen during her 2014 visit. In their complaint, they certified that an expert had reviewed “certain” medical records rather than all the records. WakeMed moved to dismiss the case, and a Wake County Superior Court judge agreed.

Judge Mark Davis, writing for a unanimous Court of Appeals panel, affirmed the ruling, citing past cases in which lawsuits were scotched because the complaints failed to precisely follow the statutory language.

“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,” Davis wrote.

“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.”

Davis said that the court was “not unmindful of the harsh outcomes that can result from the rule,” but that any changes to the pleading requirements would have to come from the legislature rather than the courts.

The decision comes on the heels of an Aug. 17 ruling by the state’s Supreme Court that may serve to mitigate some of that harshness. The Supreme Court ruled that med-mal plaintiffs could go back and correct any technical pleading errors after the statute of limitations has expired by amending the complaint—but only if the proposed medical expert had in fact reviewed all of the medical records as required by Rule 9(j) before the statute of limitation expired.

Carl Newman and Katherine Hilkey Boyatt of Cranfill Sumner & Hartzog in Raleigh represented WakeMed. Newman said that the plaintiffs took the position that their medical expert did not need to review all of the medical records, and that only a subset of those records were necessary in order to offer a sufficient opinion. As a result, they did not send all of the relevant records to their expert, and so they won’t be able to go back and fix the error in this case.

“There is a wealth of case law that says that strict compliance with Rule 9(j) is required, and that it’s not just about saying the magic words, and I think there’s a robust decisional law at this point that says that failure to comply with it exactly as it is written is going to result in dismissal, and that sometimes that means it can’t be fixed because the statute of limitations has run and it would be the kind of omission that can’t be corrected by a voluntary dismissal or an amended complaint,” Newman said.

Michael A. Jones of Durham represented the Fairfields. The phone number listed for Jones on the state bar’s website was disconnected or out of service each time Lawyers Weekly attempted to contact him, and Jones did not respond to an email seeking comment on the ruling.

The 11-page decision is Fairfield v. WakeMed (Lawyers Weekly No. 011-312-18). The full text of the opinion is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan

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