North Carolina court rejects 'reform' rule requiring expert review of med-mal claims.

In a defeat for tort "reform" advocates, a North Carolina appeals court has thrown out a state rule that required plaintiffs bringing medical malpractice cases to assert that an expert had reviewed the claim and that he or she was willing to testify on its merits.

The court found in October that North Carolina Rule of Civil Procedure 9(j) violated the state constitution's open-courts provision and the equal protection clauses of the state and federal constitutions. (Anderson v. Assimos, 553 S.E.2d 63 (N.C. Ct. App. 2001).)

The defendants appealed to the state supreme court. Both the North Carolina Academy of Trial Lawyers (NCATL) and ATLA plan to support plaintiff Margaret Anderson with amicus briefs.

Anderson alleged that the defendants--Dr. Dean Assimos, other physicians, and the treating hospitals--failed to warn her that gentamicin, an antibiotic given to her for a kidney problem, could permanently damage her inner ear. The defendants filed a motion to dismiss because Anderson failed to comply with Rule 9(j).

At the hearing on the motion, Anderson's attorney, Mary Nicholson of Greensboro, argued that Anderson, an elderly woman with a limited income, had tried unsuccessfully to find an expert to certify her complaint; the trial court nevertheless dismissed the claim. But in a 2-1 decision, the appeals court reversed.

Catch-22 for plaintiffs

Writing for the majority, Judge K. Edward Greene noted that the state legislature is "permitted to define the circumstances under which a claim is legally cognizable" and may impose procedural rules such as statutes of limitations. But Rule 9(j), he held, goes too far, because its certification requirement "unduly burdens" plaintiffs' access to the courts.

For example, a plaintiff who cannot find or pay an expert is prohibited from filing any medical malpractice claim. And if an expert is obtained, that expert decides whether the plaintiff gets to court. "It is for the courts of this state," not such experts, "to adjudicate ... the merits of an injured party's claim," Greene wrote.

Dissenting Judge Hugh Campbell Jr. wrote that Rule 9(j)'s certification requirement is not an undue burden because plaintiffs in medical malpractice cases ultimately need an expert to prove their case anyway. But Stella Boswell, legal affairs counsel at NCATL, said Campbell's argument misses the point. The real problem is that "Rule 9(j) requires malpractice plaintiffs to prove their cases before they are filed," she said. Because no discovery is allowed until a case is filed, plaintiffs can't get sufficient information to certify their claims.

Clifford Britt of Winston-Salem, NCATL's education vice president, agreed: "Cost is not the biggest issue, because eventually you've got to have an expert. We're not fighting that. But having to find an expert who can form an opinion before a case is filed puts plaintiffs in a tough spot."

For example, he said, "you might have a case where medical records are almost illegible--critical things are often handwritten--but you can't depose the doctor to explain them, so the plaintiff's expert is left to guess" what the records say.

The rule also gives defendants many opportunities to increase the cost and complexity of medical malpractice litigation, Britt added. For example, defendants often wait until late in the proceedings and then move to dismiss based on a challenge to the expert, arguing that he or she had insufficient information to form an opinion. "It's wasteful," Britt said. "Plaintiffs are forced to spend time on things that don't matter."

Britt said Rule 9(j) has produced many "horror stories." Patti Holt, a plaintiff attorney and nurse in Raleigh, has several to tell. "There is a trend with medical charting to include as little as possible in order to preclude 9(j) certification," she said.

In one of her cases, brought on behalf of a patient who died after surgery, the entire report of the operation consisted of only "one paragraph with no details, even as to why the surgery was abandoned midway through the procedure," Holt said.

In another case, a baby was born healthy but was admitted 35 minutes after birth to the neonatal intensive care unit, where he died four hours later. No charts were kept on the child during those 35 minutes.

Charles Ingram, a plaintiff attorney from Kenansville, said that "many medical defendants are refusing to provide information that is needed for the 9(j) review, even information that is clearly discoverable." He added that some plaintiffs are forced to file petitions under the state's public records law to obtain necessary documents.

NCATL is collecting information about its members' experiences with Rule 9(j) for its amicus brief. The brief will be "a policy piece to educate the courts about the real problems of Rule 9(j)," Boswell said. "The rule really does deny access to the courts."

Equal protection

In addition to citing practical difficulties with certifying a claim before filing, plaintiffs' advocates say Rule 90) violates equal protection principles because only medical malpractice plaintiffs must comply with the rule. "No other plaintiff in North Carolina is required to prove their case in advance," said NCTLA's Boswell. Britt agreed, adding, "What is it about doctors that should give them this protection?"

Greene acknowledged these concerns in the Anderson ruling. Rule 9(j)'s classification of malpractice actions into medical and nonmedical categories--with only medical claims requiring certification--raised state and federal equal protection issues and affected a fundamental right, he wrote. He applied strict scrutiny, which requires that a regulation limiting a fundamental right be justified by a compelling state interest and that it be narrowly drawn.

The asserted state interest of preventing frivolous lawsuits did not pass this test, Greene found. "There is nothing in this record to support the claim that frivolous lawsuits were a problem in medical malpractice cases before the enactment of Rule 9(j)," he wrote. Even if frivolous suits were a problem, the judge held, Rule 9(j) was not the least restrictive method of dealing with them.

Fundamental fairness

ATLA's amicus brief will argue the constitutional challenges to Rule 9(j). Robert Peck, president of the Center for Constitutional Litigation, said that in enacting the rule, the North Carolina legislature "was addressing a problem that doesn't exist." It did not even consider frivolous medical malpractice suits, he said.

"The real purpose of the rule was to make litigation more expensive, and, of course, this raises serious issues of access to the courts," he added.

Peck said that Rule 90) also raises issues of fundamental fairness under due process. "How many burdens can you load on a plaintiff before he or she files a lawsuit?" he asked. "It is unfair to require plaintiffs to jump through so many hoops that they can no longer obtain justice."

Few states have enacted precertification requirements, Peck said, and those requirements that do exist either have been struck down or have not proven onerous. Rule 9(j), he said, "is clearly onerous."

The North Carolina Medical Society has requested permission to submit an amicus brief in support of the defendants. Its request was joined by several other parties, including the North Carolina Hospital Association and the North Carolina Medical Group Managers.

The writer is no relation to attorney Patti Holt of Raleigh, North Carolina.