• Conor Regan

Medical Malpractice - An Expert Witness Without An Expert Memory

Updated: Nov 18

As has been the case for over a decade now, North Carolina's Rules of Civil Procedure and Evidence place a number of procedural land mines in the way of otherwise meritorious medical malpractice claims. Chief among these is Rule of Civil Procedure 9(j), which provides, in part, that that complaint in a medical malpractice case must


... specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care.


This requires that, before filing a medical malpractice case, the plaintiff must have a qualified expert review their care and all of their pertinent records and be willing to testify that the defendant violated the standard of care. Those who run afoul of this rule, because the expert reviewed the records late or reviewed some but no all of the records, put their cases in jeopardy of dismissal even if the expert later reviews all the materials and is still willing to testify for the plaintiff.


Those who have followed North Carolina's appellate court rulings on "9(j)" cases have, thankfully, seen a good deal of common sense in the rulings that have come down which softens the harsh effects of the rule. This past summer, however, we were reminded that you can't always count on the Court to save you. In Johnson v. Nieland, 2022-NCCOA-393, 872 S.E.2d 618, the Court of Appeals affirmed the dismissal of a case on 9(j) grounds where the plaintiff's expert testified that three pages of the defendant-chiropractor's records that he reviewed had printed incorrectly and were illegible. Ergo, the crux of his testimony was that he was not able to review those three pages.


The defense filed a motion for summary judgment on the grounds the expert had not complied with Rule 9(j) and reviewed all the records pertaining to the alleged negligence prior to rendering his opinion. In opposition to the motion to dismiss, the expert witness provided an affidavit stating:


"Due to the stress of the situation and the unfamiliar setting of a virtual deposition, I mistakenly stated that I could not read the three page note of January 8, 2020. However, at that time I was remembering the two chart pages that were illegible, the Notice of Privacy Practices and the Authorization."


However, both the trial court and the Court of Appeals refused to consider the affidavit on the assertion that a witness could not contradict their deposition testimony via the use of an affidavit for the purpose of defeating a motion for summary judgment. This result provides the the following valuable reminders.

  1. Though the Courts have taken some of the rough edges off of 9(j), it still has plenty of corners to poke you with.

  2. A good attorney needs to spend copious time working with experts both before filing and during the case. It is very easy to let experts - who in these cases are highly educated medical professionals - "yeah-yeah-yeah" you to death when you try to impress upon them the seriousness of 9(j). I have had more than a few physicians try to blow me off by stating they had testified in North Carolina cases before and new the rule well. While that might be true, I doubt they have spent much time reading all the 9(j) case law out there in order to have a full understanding of its requirements and risks.

  3. Mock deposing experts is crucial. This can increase the cost of the case, but the cost of a few extra hours of the expert's time is a small price to pay to avoid dismissal.

Please note that none of the above are meant to be a criticism of any of the attorneys in the case as I certainly have no idea of what went on behind the scenes. It is also not meant to be a criticism of the attorneys because I respectfully disagree with the trial and appellate court's decision.

The Court based its dismissal on Rule 56, which pertains to motions for summary judgment. While the Court was correct that you cannot use an deponent's affidavit that conflicts with their deposition testimony to create a genuine issue of material fact and defeat summary judgment, Rule 9(j) is a pleading statute, and thus the analysis should have been based on Rule 12 and not Rule 56. North Carolina Rule of Civil Procedure 30(e) allows an deponent to review the transcript and "[i]f there are changes in form or substance, the deponent shall sign a statement reciting such changes and the reasons given by the deponent for making them." Courts have long held that this allows a witness to quite literally change a "yes" to a "no." ** Therefore, when the expert corrected himself via affidavit, it should have been sufficient to show the 9(j) pleading requirement was satisfied. That's my $0.02 at least. The good news is that the decision was unreported, so it has diminished precedential value and can be attacked in the event some unlucky attorney finds himself in another situation where his expert forgets what he reviewed!


** There is a lot more nuance to this rule, which could be a whole blog post to itself, but for now, take my word for it that this is the majority rule among courts that have addressed it!

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