Preston change-o? Supreme Court takes more lenient approach to Rule 9(j)

BY MARK MCGRATH

Since its inception in 1995, Rule 9(j) has presented stout and unique challenges to medical malpractice victims. As its legislative history makes clear, lawmakers enacted it to eliminate frivolous medical malpractice cases by requiring pre-suit review of the case by a qualified medical expert who is willing to testify that the defendant breached the applicable standard of care. The rule further requires that malpractice complaints include a certification that the necessary review has occurred prior to filing suit. 

Over its 25-year history, Rule 9(j) has accumulated a vast and tortuous body of interpretive case law.  Seemingly benign and modest in its mandate, it has been applied harshly by the appellate courts, frequently resulting in the dismissal of otherwise meritorious claims for technical violations. Some cases have involved complaints with non-conforming 9(j) certifications or lacking certifications altogether. Others involve pleadings with facially valid certifications that are later found to be non-compliant during the course of discovery.

These cases typically involve 9(j) experts who are excluded by the trial court during litigation or otherwise found to be incapable of qualifying under Rule 702. In cases decided since the 2011 amendments to Rule 9(j), plaintiffs have struggled with issues arising from the requirement that plaintiffs provide their 9(j) experts with pertinent medical records prior to filing suit.

Since its enactment, Rule 9(j) has visited untold carnage upon patients and their attorneys. Surveyed from the remove of 25 years, the precedential landscape reveals a wreckage of well-intentioned complaints found to be non-compliant with Rule 9(j). The rule has kept Lawyers Mutual and appellate counsel busy cleaning up the debris.

Things may be changing. Beginning with Moore v. Proper in 2012, the North Carolina Supreme Court has signaled a less draconian approach to assessing Rule 9(j) compliance. Consistent with this trend, the Supreme Court issued its much-anticipated decision in Preston v. Movahed on April 3. Authored by Justice Anita Earls, the opinion reverses a Court of Appeals decision that has bedeviled plaintiffs since March 2019. For malpractice victims and the attorneys who represent them, there is much to like here.

Preston involves the death of a patient who visited the hospital due to persistent chest pain. Upon examination in the hospital emergency room the patient exhibited an abnormal EKG. After conducting a preliminary cardiac work-up the patient underwent a nuclear stress test which suggested a cardiac abnormality. Despite these symptoms and findings, the patient was discharged from the hospital with instructions to see his primary care physician to determine if his symptoms were due to some other condition. 

One week after his release from the hospital, the patient suffered a fatal heart attack. The plaintiff-administrator filed suit against his treating nuclear cardiologist, alleging that the defendant negligently failed to conduct an appropriate work-up in light of the EKG findings, failed to perform certain diagnostic tests, otherwise failed to determine that the patient was suffering from cardiac ischemia during his admission to the hospital, and negligently discharged the patient in light of his symptoms and diagnostic findings.

The complaint facially complied with Rule 9(j), reciting that the relevant care and medical records had been reviewed by an expert who was reasonably expected to qualify under Rule 702 of the Rules of Evidence. During the litigation, the plaintiff designated her expert witnesses, which included a cardiologist. 

During his discovery deposition the cardiologist testified that he didn’t feel qualified to give opinions regarding the treatment rendered by the defendant, who was a nuclear cardiologist, and had told plaintiff’s counsel not to name the nuclear cardiologist as a defendant without designating a qualified nuclear cardiologist to review those aspects of the treatment requiring the expertise of a nuclear cardiologist and communicated these misgivings to plaintiff’s counsel before the action commenced.

The nuclear cardiologist subsequently moved to dismiss the claims against him on the grounds that the cardiologist didn’t qualify under Rule 702. The trial court agreed and dismissed the action.

A unanimous Court of Appeals panel affirmed the dismissal. It began by finding that its consideration of the Rule 9(j) dismissal was subject to de novo review, but proceeded to conduct a lengthy analysis of the trial court’s numerous factual findings (there were 27) and legal conclusions in support of the order dismissing the case. In her brief to the Court of Appeals, the plaintiff identified only three of the factual findings as being problematic; the court held that these were all supported by competent evidence and therefore conclusive on appeal.

The court then addressed the trial court’s conclusions of law, in particular focusing on the facts that the expert cardiologist offered no opinions at his deposition that were critical of the care rendered by the defendant nuclear cardiologist and had communicated to counsel his unwillingness to testify against the defendant unless the plaintiff also retained and designated a nuclear cardiologist to complement his testimony. The court held that the findings of fact supported these legal conclusions. 

Based on these findings, the court concluded that competent evidence supported the trial court’s findings of fact, which were deemed conclusive on appeal, and these factual findings supported the trial court’s legal conclusions. As such, it concluded that dismissing the action for non-compliance with Rule 9(j) had been proper.

The Supreme Court granted the plaintiff’s petition for certiorari. The parties submitted briefs, and the court heard oral argument late last year. 

The Supreme Court began its analysis by finding that, in contravention of applicable law, both the trial court and appeals court failed to view the relevant facts and evidence in the light most favorable to the plaintiff, and the Court of Appeals failed to conduct an appropriate de novo review of the trial court proceedings, deferring almost entirely to the trial court’s findings.

It then discussed its decision in Moore v. Proper, finding that Moore governed the case. Applying Moore, it held that, viewed in the light most favorable to the plaintiff, the record evidence indicated that the expert cardiologist was willing to testify against the defendant, a willingness that he communicated to plaintiff’s counsel prior to commencement of the action.

The court next addressed whether the record supported the plaintiff’s contention that she had a reasonable expectation at the time of filing that the cardiologist would qualify as an expert under Rule 702. It observed that in conducting this inquiry “all reasonable inferences” should be drawn in favor of the non-moving party at the preliminary stage of determining Rule 9(j) compliance. Invoking Moore, the court cautioned that when a plaintiff relies on a given fact or inference as a basis for her expectation, reliance on a fact or inference will be deemed unreasonable only in the “rare case in which no reasonable person would so rely.” This, the court held, was not such a case, so the plaintiff’s expectation was reasonable under the principles articulated in Moore.   

In reaching its decision, the court recognized and endorsed the three-part test prescribed by Moore for determining whether an expectation is reasonable for purposes of Rule 9(j) and Rule 702: A court must determine whether the expert was a member of the same health profession as the defendant in the year preceding the treatment at issue, assess whether the expert was engaged in the active clinical practice of that profession during that one-year period, and determine whether the expert devoted a majority of her professional time to the active clinical practice of that profession during the year preceding the care and treatment at issue. 

The Preston court held that the cardiologist designated by the plaintiff satisfied all three prongs of the Moore test, and so the lower courts both erred in determining that the plaintiff lacked a reasonable basis for believing that her cardiologist expert would qualify under Rule 702.

In a full-throated dissent, Justice Paul Newby argued that the majority had turned Moore on its head by applying a standard of review that accorded little deference to the findings and conclusions of the trial court. Newby contends that the majority opinion improperly assumed the role of gatekeeper, a function traditionally reserved for the trial courts, and concludes that it erred in making its own factual findings and reaching its own legal conclusions independent of, and without paying appropriate deference to, the findings of the trial court.

As the most recent Rule 9(j) opinion from the Supreme Court, Preston is required reading for attorneys who handle medical malpractice cases. Among other things, Preston reshapes the standard of review for appellate courts reviewing a Rule 9(j) dismissal, requiring them to review the issues presented in the record with fresh eyes, largely unfettered by the factual findings and legal conclusions reached by the trial court. While the Court of Appeals recited that it was applying a de novo standard of review, it actually deferred almost entirely to the findings made by the trial court. The Supreme Court unequivocally rejected such an approach. 

Preston also makes clear that lower courts must apply the three-part test enunciated in Moore when determining if an expectation was reasonable under Rule 9(j) and Rule 702. With respect to Rule 702, Preston squarely holds that an expert will pass muster if the proponent can satisfy the foundational rudiments of the rule. Courts do not explore whether the expert is familiar with the standard of care in the community at issue pursuant to N.C. Gen. Stat. § 90-21.12 nor weigh the reliability or quality of the opinions rendered by the expert in making this assessment. Rather, the appropriate analysis is whether the expert, by education, training, background, and experience meets the profile established by Rule 702(b).

Does Preston augur a more lenient approach from the courts in Rule 9(j) cases? That remains to be seen. Even standing on its own, however, Preston is a seminal Rule 9(j) case. Only its legacy remains to be written.