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  • Writer's pictureW. Cory Reiss

Courts play gotcha with malpractice victims.

Updated: Jun 9, 2022

The North Carolina Court of Appeals just reminded us that the road to legal recovery for patients trying to hold doctors and hospitals accountable for negligent care is full of boobytraps.

For the sake of rooting out “frivolous” malpractice lawsuits — a bogeyman deployed by lobbyists for medical professionals and institutions nationwide — the North Carolina General Assembly has enacted various laws that probably make getting to trial here as expensive and uphill as any state in the county.

One technical misstep, a trap door opens, and the case disappears.

The Court of Appeals on Tuesday nixed another malpractice claim for just such a reason. The Court affirmed dismissal of a wrongful death action against New Hanover Regional Medical Center and doctors from Wilmington Health who practice there based on rules that give special protections to medical providers that no other profession enjoys.

Based on the facts of the case, the family of the deceased had good reason to sue. The patient had a history of blood cancer and was admitted to the hospital with a depressed platelet count, which are the cells associated with clotting. One of his doctors prescribed Heparin, a blood thinner, apparently to avoid the formation of blood clots that might cause a stroke — a treatment the family contends was inappropriate given his low platelet count.

After admission, a blood test showed a platelet count low enough to trigger an electronic message to one of his doctors, but the hospital still administered the Heparin that night. His platelets dropped again by morning, but Heparin was administered again. That afternoon, a nurse withheld the blood thinner, but in the middle of the night someone at the hospital sent one of the patient’s doctors a message that the patient was confused, impulsive, disoriented, and had slurred speech. Apparently, the hospital had incorrect contact information for these doctors, so they didn’t get their messages.

The hospital discontinued the Heparin instruction and began treatment for the patient’s low platelets, but he developed a brain hemorrhage. Due to his condition, an operation was out of the question and he died.

The trial judge dismissed the case on technical grounds, and the Court of Appeals agreed.

Rule 9(j) of the Rules of Civil Procedure requires a medical malpractice plaintiff to certify in his lawsuit that all the records relevant and reasonably available were reviewed by an expert expected to qualify at trial who found a “breach in the standard of care” — which is the legal standard for medical negligence. Under the rules of evidence, in a medical malpractice case, a doctor may testify as an expert about the standard of care if he is in the same or similar specialty as the defendant doctor and either spent the majority of his time the prior year practicing in a clinical setting or instructing students in the same health profession as the defendant doctor.

Medical negligence cases almost always require expert testimony about whether negligence occurred and, if so, whether that negligence was a cause of injury to the patient. The Court of Appeals here found that the trial judge properly excluded the patient’s expert because he had not practiced clinically since 2013 — a matter of months before the one-year window of the rule — and was merely a professor emeritus at Rutgers University who didn’t spend enough time teaching to qualify as the “majority” of his time.

The Court of Appeals also ruled that because he had based his opinions on only the 25 percent of medical records that encompassed the negligent conduct, and not records involving the hospital’s treatment of him afterward until the patient’s death, the expert had not satisfied the record review requirement of Rule 9(j).

Without an expert witness, the family had no case.

Disqualifying an expert who clearly qualifies by experience and training because he didn’t teach enough in his retirement is unfair enough, but the second reason is especially illustrative of how the law punishes patients who are injured by no fault of their own. The rule requires a 9(j) certification only on the issue of whether negligence occurred; what came after may be relevant to many other issues but not necessarily to that specific question. Given the thousands of pages that probably existed in this patient’s chart, the Court is condemning patients to spend thousands of dollars on unnecessary record review so they can check a box demanded by judges who are intent on squashing their cases.

Rule 9(j) serves a worthy purpose; no one can contend with a straight face that North Carolina has a problem with “frivolous” lawsuits. The expert review is already expensive enough that malpractice lawyers are selective about which cases to take, but overly-broad readings of the statute only increase the technical and financial burden on patients seeking a fair hearing.

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