Archive

• Amending defective Rule 9(j) certifications under Rule 15(a): The Supreme Court’s new opinion in Vaughan v. Mashburn

  This entry was contributed by Ann Anderson on August 31, 2018 at 2:42 am and is filed under Civil Law, Civil Procedure-General.

  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. Continue Reading

• Pleading med mal: Rule 9(j), res ipsa loquitur, and a new Court of Appeals opinion

  This entry was contributed by Ann Anderson on April 18, 2018 at 4:35 pm and is filed under Civil Law, Civil Practice, Civil Procedure-General.

  Rule 9(j)’s special pleading requirement

  Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation not required in other types of negligence suits.  The plaintiff must allege that the medical care and 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.  The rule is very strict, and if a plaintiff fails to include the Rule 9(j) language before the underlying statute of limitations expires, the complaint “shall be dismissed.”  See, e.g., Vaughan v. Mashburn, 795 S.E.2d 781 (N.C. App. 2016) (acknowledging the harshness of the result).

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• Appointment of a GAL Starts the Clock on a Minor’s Med Mal Action

  This entry was contributed by Ann Anderson on March 16, 2018 at 2:51 pm and is filed under Civil Practice, Civil Procedure-General.

  Earlier this month the North Carolina Supreme Court issued its opinion in King v. Albemarle Hospital Authority, holding that a GAL appointment starts the running of the statute of limitations for a minor’s medical malpractice claim. During her birth in 2005, the plaintiff, Desiree King, suffered a severe brain injury. In 2008, just under three years later, a medical malpractice action was filed on her behalf by the guardian ad litem (GAL) who had been appointed for her earlier the same day pursuant to Rule of Civil Procedure 17(b).  A few months later, the GAL voluntarily dismissed the action without prejudice as permitted by Rule 41(a).  Instead of refiling Desiree’s action within one year as Rule 41(a) allows, the GAL refiled in 2015, about six years later.  On the hospital’s motion, the trial court dismissed Desiree’s action as time-barred.

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• Falls at the hospital: medical malpractice or ordinary negligence? Recent Court of Appeals opinions

  This entry was contributed by Ann Anderson on May 26, 2017 at 1:22 pm and is filed under Civil Law, Civil Practice, Civil Procedure-General.

  Why it matters: Rule 9(j) very briefly.

  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 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 before the underlying statute of limitations expires, the complaint “shall be dismissed.”  This special pleading requirement does not apply to other types of malpractice or to ordinary negligence actions.  Rule 9(j) was enacted as an attempt to curb frivolous medical malpractice claims.  But it has had the side effect of generating more than its fair share of appellate wrangling.  Since it was enacted in 1995, well over 100 published opinions have been issued interpreting its undefined provisions, reconciling it with other procedural rules, and determining when it does and does not apply.  [See an overview here.]   One group of those opinions has examined whether the complaint actually alleged a “medical malpractice action” in the first place, or whether it merely stated a claim for ordinary negligence.  If a claim is ordinary negligence, Rule 9(j) does not apply, even if the event occurred in a medical setting and the defendant was a “health care provider.”

  Falling in a medical facility

  Patient falls–either from standing or lying positions—have featured somewhat prominently in these cases.  Where the court has concluded that the fall involved a provider’s clinical assessment or judgment, the claims have been classified as medical malpractice.  See Sturgill v. Ashe Memorial Hospital, Inc., 186 N.C. App. 624 (2007) (failure to restrain fall-risk patient where restraints required medical order); Deal v. Frye Reg. Med. Ctr, 202 N.C. App. 584 (2010) (unpub’d) (failure to conduct requisite fall risk screening); see also Littlepaige v. US, 528 Fed Appx 289 (4th Cir. 2013) (unpub’d) (failure to secure patient who had been placed on “falls precaution”). Continue Reading