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Spend a fall Friday in Chapel Hill with us for practical legal education and 6.25 hours of live CLE. Civil and criminal updates, Supreme Court case review, a land use […]
Earlier this month the North Carolina Supreme Court issued its opinion in Vaughan v. Mashburn, an important case interpreting Rule 9(j), the special pleadings rule for medical malpractice actions.
Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation that the medical care and medical records have been reviewed by an expert who meets certain qualifications and who is willing to testify that there was a breach of the standard of care. If a plaintiff fails to include the Rule 9(j) language, the complaint “shall be dismissed.” This special pleading requirement does not apply to other types of malpractice or to ordinary negligence actions. The original aim of the rule was to reduce frivolous med mal litigation; but, as I have noted in the past, in its short life it has generated well over 100 published appellate opinions as courts have grappled with its undefined provisions, reconciled it with other procedural rules, and tried to determine when it does and does not apply.
Vaughan, the latest such case, centers on whether a party can invoke Rule of Civil Procedure 15 to amend defective language in a Rule 9(j) certification. Before filing her action, Ms. Vaughan had timely obtained the required expert review of her medical care and medical records. When her attorney filed the complaint, he included a Rule 9(j) certification, but it was defective in the following sense: it certified that the medical care had been reviewed, but it failed to also state that the medical records had been reviewed. The medical “records” language had been added to Rule 9(j) in 2011, and the attorney erroneously included the pre-2011 language. Soon after the complaint was filed, the original statute of limitations expired. When the mistake in the Rule 9(j) certification was revealed, Ms. Vaughan’s counsel moved to amend the complaint to add the omitted phrase. Following existing Court of Appeals precedent, the superior court denied the motion to amend as “futile” because, even if granted, the Rule 9(j) certification could not be properly made prior to expiration of the statute of limitations. Based on its prior decisions (Fintchre (2016); Alston (2016); and Keith (1998)), the Court of Appeals affirmed.
A child has been adjudicated by the district court as abused, neglected, and/or dependent. At the dispositional phase of the case, the trial court determines it is in the child’s best interest to place that child with a relative. In fact, the court is required to give a relative priority when making an out-of-home placement. See G.S. 7B-903(a1). The relative, however, lives in another state. The placement must be made in accordance with the Interstate Compact on the Placement of Children (ICPC). Id. The Court of Appeals recently addressed whether the ICPC applied to an out-of-state relative placement in In re J.D.M.-J., ___ N.C. App. ___ (June 18, 2018).
A couple of years ago, I posted about orders to surrender firearms in Chapter 50B domestic violence protective orders. See https://civil.sog.unc.edu/when-can-the-court-order-surrender-of-firearms-in-a-dvpo/. Earlier this summer, the NC Court of Appeals addressed orders to surrender firearms in Chapter 50C Civil No-Contact Orders. In Russell v. Wofford, (NC App June 19, 2018), the court held that a trial court has “no authority under NCGS Chapter 50C to order defendant not to possess or purchases any firearms, to surrender his firearms, or to revoke his concealed carry permit.”
In my last post I highlighted the Juvenile Reentry Second Chance Project that serves youth returning to their communities from out of home placements. This post will focus on a juvenile’s out of home placement in a youth development center.
This November, North Carolina voters will be asked to vote for or against a “Constitutional amendment to implement a nonpartisan merit-based system that relies on professional qualifications instead of political influence when nominating Justices and judges to be selected to fill vacancies that occur between judicial elections.” If voters approve the amendment, what will change about the way judges are selected in North Carolina?
One of the General Assembly’s last acts before adjourning in June was the enactment of S.L. 2018-50 (S 224), amending landlord-tenant law in apparent response to a decision by a Wake County Superior Court Judge. See “It’s Landlords vs. Tenants in Eviction Battle,” Raleigh News & Observer 6/18/2018.
As civil litigators in North Carolina know, in order to support most motions for attorney fees (pursuant to statutes that authorize them), a party must present evidence as to the […]
The 2018 Legislative Session created and amended various North Carolina statutes affecting child welfare. Some of those changes are effective now and others at later dates. Here are the highlights.
I discussed in a previous post, You Need to Know More Than Just the Law, that it has become increasingly important for attorneys to be knowledgeable about non-legal issues that affect the lives of their clients. I cited examples of law offices working in multidisciplinary teams to meet the legal, social, health and economic challenges faced by clients. This blog post will highlight a new project aimed at reducing recidivism and increasing positive outcomes for youth through a multidisciplinary approach. Jennifer Story, Supervising Attorney for Advocates for Children’s Services, and Olivia McLaughlin, Juvenile Reentry Project Social Worker for the organization, presented the project to the juvenile defenders at the North Carolina Spring Public Defender and Investigator Conference in May 2018.