The Practical Litigator: How to avoid Rule 9(j) problems

By Mark McGrath

In 2011 the General Assembly enacted sweeping tort reform legislation that changed the way medical malpractice cases are litigated in North Carolina, amending Rule 9(j) of the Rules of Civil Procedure to require pre-suit review of “all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry.” The prior version of Rule 9(j) merely required pre-suit review of the relevant “medical care” by a qualified expert.

At first blush, the amendment seemed rather benign. After all, most plaintiffs’ attorneys were already in the practice of providing their certifying experts with medical records regarding the care and treatment at issue. How else could a prospective 9(j) expert provide a meaningful review of the medical care without reviewing relevant medical records?

But the prior version of the rule did not require review of “all” relevant medical records and certification that such an exercise had been undertaken and completed by the 9(j) expert prior to filing suit. Indeed, cases interpreting Rule 9(j) before the effective date of the amendment did not require pre-suit review of any medical records. Considerable latitude was given to attorneys who chose to obtain pre-suit certification without providing their experts with reams of medical records.

For example, the Court of Appeals held in 2000 that a certifying expert could base his opinions on a summary of the medical care at issue provided by the patient’s attorney in a telephone conversation, a technique that the court deemed “perfectly acceptable.” This permissive standard allowed attorneys approaching the statute of limitations with little time to gather pertinent medical records to obtain pre-suit review by a qualified doctor. Similarly, gaps or omissions in the medical records were not matters critical to the survivability of a 9(j) expert during discovery.

Since 2011, appellate decisions interpreting amended Rule 9(j) have largely involved failures by the plaintiff to include language in the 9(j) certification to reflect that “all medical records pertaining to the alleged negligence” had been reviewed by the expert. Typically, these cases involved unfortunate counsel who lifted language from pre-2011 complaints, thereby omitting reference to the “all medical records” requirement. On this issue, the courts could be decidedly unforgiving, sometimes dismissing cases based on these technical slips and not allowing amendments to cure these technical pleading defects.

As cases continue to work their way through the litigation and appeals process, courts have begun to address some of the nuances presented by the amended Rule. On Dec. 3, the Court of Appeals issued a significant opinion addressing the “all medical records” requirement in Mangan v. Hunter, a dental malpractice case. Prior to obtaining a pre-suit certification from an expert witness, plaintiff’s counsel delivered to the expert a USB drive that purportedly contained the dental records relating to the care and treatment to be reviewed by the expert. After obtaining a favorable opinion from the expert, plaintiff filed a complaint that contained a facially compliant certification that recited the “all medical records” language prescribed by amended Rule 9(j).

During litigation, the expert responded to 9(j) interrogatories submitted by the defendant. The verified interrogatory responses included a list of documents that the expert had reviewed prior to forming her opinions. During her discovery deposition, the expert testified that the list contained in her interrogatory responses accurately reflected the universe of documents that she had reviewed in forming her opinions. As pointed out by defense counsel during the course of the litigation, however, the list did not include treatment notes prepared by the defendant dentist. The expert testified during her deposition that it would have been “unlikely” and “unusual” for her to have formed opinions without reviewing all relevant dental records, including the dental notes. She also testified, however, that she could not state under oath that she had in fact reviewed and considered the treatment notes in forming her opinions. Taken as a whole, her testimony vacillated during the course of her deposition about whether she had reviewed the defendant’s notes prior to rendering her opinions.

Defendant moved for summary judgment, arguing that the expert failed to satisfy Rule 9(j) in that she failed to review all of the plaintiff’s dental records. In opposition, plaintiff submitted an affidavit from counsel indicating that the expert had acknowledged receipt of the records and reviewed them prior to filing suit. The expert also submitted an affidavit, stating that since the deposition and “refreshing” her memory as to her work on the case, she was “certain” that she had reviewed the patient’s dental records prior to forming her opinions. The Cabarrus County trial court granted summary judgment.

The Court of Appeals held that the record contained “multiple” issues of material fact that precluded summary judgment, deeming the trial court’s resolution of these issues “wholly improper.” The court observed that the expert’s ambiguous and sometimes conflicting deposition testimony rendered it unclear whether she had in fact reviewed all of the plaintiff’s dental records prior to formulating her opinions. On one hand, the expert seemed uncertain and was reluctant to testify under oath that she had reviewed all of the relevant medical records. On the other hand, she testified that reviewing all pertinent medical records was her unwavering practice.

The court noted that portions of the expert’s testimony regarding the defendant’s care and treatment were specific on issues that could only have been derived from a review of the dental records. It reasoned that while the verified interrogatory responses (which omitted reference to the patient’s dental records) were at odds with the expert’s deposition testimony, the expert clearly believed that she would have reviewed the records prior to forming her opinions. The court concluded that whether the expert’s belief was accurate or not was an issue of fact to be determined by a jury and that, by making undisputed findings of fact on these issues, the trial court had engaged in improper fact resolution, an exercise that invaded the province of a jury.

The court also referenced additional circumstantial evidence tending to show that the expert had reviewed the relevant dental records prior to forming her opinions. For instance, in a letter to plaintiff’s counsel the expert stated that the defendant “failed to document” concerns that he may have had regarding the plaintiff’s condition, the reasonable inference being that the expert had in fact reviewed the dental records. The court concluded that taken together, the potential conflict between the interrogatory responses which omitted reference to the dental records, the expert’s ambiguous deposition testimony, and the statements in her affidavit created genuine issues of material fact that precluded summary judgment.

Finally, the court applied the Supreme Court’s holding in Crocker v. Roethling to provide a cautionary directive to trial courts confronting similar scenarios in medical malpractice cases. Citing Crocker, the Mangan court concluded that voir dire, not deposition testimony or “conclusory affidavits,” provided the most reliable method for assessing whether an expert’s testimony should be permitted at trial. The conflicting evidence as to whether the expert reviewed the dental records created a “close call” on this issue. Weighing the fact that exclusion of the plaintiff’s sole expert would be outcome determinative, the court of appeals concluded that the ruling of the trial court could not stand, admonishing the trial court that upon remand it should conduct voir dire of the expert to resolve the evidentiary vagaries presented in the record.

So what are the lessons and takeaways from Mangan? A few leap to mind.

1. Be sure to create a record that memorializes in detail all materials that are submitted to a reviewing expert, especially a 9(j) expert. Present the materials in a way that allows meticulous recreation of what was sent and when it was sent. For example, one might consider Bates-stamping the records submitted to the expert, together with a cover letter that memorializes each category of documents being submitted. A control set of the communication to the expert and the attached or enclosed records should be safely preserved, either in hard copy or in PDF format, preferably both. 
2. Prepare your expert, and then prepare her some more. The hours spent wood-shedding the expert are insurance against the possibility of an adverse ruling in the trial court and a likely appeal down the road. Be sure that the expert appreciates the fact that she will encounter rigorous questioning during her discovery deposition regarding 9(j) compliance. Make certain that your expert enters her deposition with a clear idea of what she received and reviewed, and when she received and reviewed it. Ensure that the expert is conversant and comfortable with these details of her work on the case. Given the potential downside, no amount of preparation should be considered excessive. 
3. Get in front of the evidentiary train with a pre-suit affidavit from your 9(j) expert. Create a detailed affidavit to be executed by the expert following her review of the submitted materials that recites and memorializes the documents and other data reviewed by the expert prior to formulating and communicating her opinions to counsel. Consider a comprehensive affidavit that also recites the efforts undertaken by the expert to familiarize himself with the applicable standard of care in the defendant’s medical community (demographic data, medical resources, etc.).

Remember that regardless of the time and effort you spend preparing your expert for deposition, there are bound to be sound bites and snippets of testimony that are vague, conflicting, and potentially damaging on key points. In anticipation of such problems, draft an affidavit that can, at the very least, create an issue of fact regarding the expert’s review of “all” pertinent medical records. Use the affidavit when preparing your expert for her deposition. At deposition, consider including the affidavit among the materials that are produced by the expert as part of the work product she prepared in connection with the case. Because the affidavit will likely become a deposition exhibit, the four corners of the deposition will present clear evidence that the expert has reviewed all relevant medical records, regardless of how muddy things become during her deposition.

4. Finally, while not directly addressed by Mangan, cast a wide net in identifying and producing to your expert medical records that pertain to the negligence of the defendant. If the defendant doctor rendered the care at issue in a hospital setting, be sure to request not only the hospital records but any and all notes and documents in the possession of the doctor individually and from his practice group (if any). In addition to the records that memorialize the specific care and treatment at issue in the case, consider collecting and presenting to your expert other medical records, past and present.

While it may not appear that such records “pertain” to the alleged malpractice, obtaining and producing them to your expert pre-suit can avoid an argument down the road that given categories of medical records were “available to the plaintiff after reasonable inquiry” but were not produced to or reviewed by your expert. Among other things, consider producing records that evidence preexisting conditions of the patient that might be relevant to an expert’s causation analysis. While such records do not technically pertain to the care at issue in a typical malpractice case, it is always better to error on the side of caution.

For plaintiffs’ attorneys, Mangan will likely be received as a welcome departure from the draconian decisions of 15 or 20 years ago that ruthlessly applied Rule 9(j) and Rule 702 of the Rules of Evidence to exclude qualified experts for hyper-technical deficiencies in their discovery deposition testimony. Taken together with Crocker and other rulings, Mangan suggests that our appellate courts may be distancing themselves from more pedantic interpretations of the trial courts’ gatekeeping function, applications that too often resulted in the dismissal of meritorious claims.

But trial courts tend to learn such lessons slowly. Remember that in Mangan, a trial court in suburban Charlotte granted summary judgment on the conflicting evidentiary record presented in that case. This should serve as a warning to all practitioners that judicial minefields still dwell within our legal landscape. Given the prospects of dismissal, summary judgment or a lengthy, expensive, and uncertain appellate process, prudence demands meticulous preparation and attention to detail when it comes to expert witness utilization. As with all things, an ounce of preparation is worth a pound of cure. Nowhere is this truer than in the unsettled and sometimes cruel world of North Carolina medical malpractice litigation.

Mark McGrath is an attorney with Brent Adams & Associates in Raleigh, where he focuses his practice on medical malpractice, nursing home negligence, third-party workplace injury, wrongful death and catastrophic personal injury litigation. He welcomes comments and may be reached at [email protected]