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The Hippocratic “Oops” -- First Do No Harm to Your Client

by Warren Savage |

New Rule 9(j) Requires Certification That Expert Reviewed All Pertinent Medical Records

During the debates and negotiations leading up to the medical malpractice tort reform measures enacted in the summer of 2011, there was much discussion and media coverage about the noneconomic damages cap and the heightened burden to bring a claim arising from emergency room malpractice.  However, there was a little-discussed addition to Rule 9(j) that will be the most litigated and the greatest legal malpractice trap for litigators going forward.  Rule 9(j) now requires that (1) the plaintiff make a reasonable inquiry to obtain all medical records pertaining to the alleged negligence, (2) the Rule 9(j) expert must review all such available medical records, and (3) the certification in the complaint must explicitly state that such review occurred.

The amended Rule 9(j) applicable to all actions filed on or after October 1, 2011, states specifically:

Any complaint alleging medical malpractice . . . shall be dismissed unless . . . the pleading 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.

After a decade of contentious, and sometimes inconsistent, appellate decisions interpreting the many nuances and applications of the original Rule 9(j), the amended rule adding the medical records review requirement will likely cause another multi-front battleground before the appellate courts for years of new issues involving uncertainties in the new language. 

 In the aftermath of the passage of the amendment, Lawyers Mutual is already seeing potential claims arising from complaints filed by plaintiff attorneys who were simply unaware of the new medical records review and certification requirement.  The Rule 9(j) certification will not meet the rule’s requirements unless it specifically states 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 the 9(j) expert.  Without that statement, the Rule says that the complaint will be subject to dismissal. 

 Make sure to review the new Rule 9(j) before filing your medical malpractice complaint.  For common questions raised by Rule 9(j), see article "Blatant Ambiguity." Should you have questions about your required certification or find yourself faced with a motion to dismiss, please feel free to call us so that we can help you explore claims prevention and repair options.

Warren Savage joined Lawyers Mutual as claims counsel in 2005. He focuses on litigation, criminal defense, appellate advocacy, and professional responsibility in his work with Lawyers Mutual. A former partner with the law firm of Bailey & Dixon in Raleigh, Warren graduated from the University of Virginia and earned a Master of Arts in Teaching at the University of North Carolina at Chapel Hill before graduating magna cum laude from Campbell University School of Law. He spent several years as a high school English teacher.  Contact Warren at 800.662.8843 or wsavage@lawyersmutualnc.com.

About the Author

Warren Savage

Warren Savage is a claims attorney with Lawyers Mutual. Warren spends his days counseling lawyers on litigation and appellate practice issues and advising on practice management and ethics conundrums. Contact Warren at 800.662.8843 or warren@lawyersmutualnc.com.

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