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RULE 9(J) EXTENSION SAVES PLAINTIFF’S CLAIM By GUY LORANGER, Staff Writer

Because the plaintiff asked prior to the expiration of the statute of limitations period for an extension to find an expert who would certify his medical malpractice complaint, a Hertford County court should not have dismissed his lawsuit, the Court of Appeals has ruled.

Under civil procedure Rule 9(j), a medmal plaintiff is required to allege in a complaint that the defendant’s medical care has been reviewed by a person who is expected to qualify as an expert witness and would be willing to testify that the defendant did not comply with the relevant standard of care.

However, the rule allows the plaintiff to file for an extension of up to 120 days past the statute of limitations period in order to comply with the certification requirement.

Judge Barbara A. Jackson, writing for the majority in the May 5 decision, said that nothing in Rule 9(j) requires that the trial court actually grant that extension prior to the expiration of the statute of limitations or, more importantly, that the plaintiff seek the extension prior to filing an initial complaint.

“Reversing the trial court in this case is consistent with both the legislature’s intent to require expert certification and its intent to allow additional time to obtain such certification,” Judge Jackson wrote. “Otherwise, the ability to obtain an extension would serve no purpose.”

The case is Brown v. Kindred Nursing Centers East, L.L.C. (North Carolina Lawyers Weekly No. 09-07-0414, 14 pages). Judge Robert C. Hunter joined in the majority opinion, while Judge Rick Elmore issued a dissent.

“There’s always been a debate among members of the plaintiff’s bar who handle medical malpractice claims as to whether you actually need to have an [extension] signed by the court prior to the expiration of the statute of limitations,” said the plaintiff’s attorney, Stephen J. Gugenheim of Raleigh.

“I think this clarifies Rule 9(j).”

An attorney for the defendant, New Bern lawyer Thomas E. Harris, said he would ask his client to appeal the decision on the basis of Judge Elmore’s dissent.

Because the expert’s review of the medmal claim had not occurred prior to the filing of the initial complaint, Elmore said the trial court’s dismissal of the suit should have been affirmed.

“The additional time [allowed under Rule 9(j)] is to file the lawsuit, not to obtain the expert witness review,” Harris told North Carolina Lawyers Weekly.

“The whole purpose [of Rule 9(j)] is to prevent frivolous lawsuits by requiring certification that a competent expert has agreed that there’s been malpractice and will agree to testify. What this opinion says is that that’s not necessarily so. So, what was a fatal defect is no longer fatal.”

Background

In this case, the plaintiff alleged that the defendant had caused his father’s death on April 3, 2004, by removing a feeding tube and improperly replacing it with a much smaller one.

The statute of limitations would have expired on April 3, 2006. However, on March 29, 2006, the plaintiff filed both a pro se complaint and a request for a 120-day extension to meet the Rule 9(j) requirement.

The plaintiff claimed that even though he had consulted with experts prior to filing the complaint, none of them were willing to express their opinions “on the record.”

The trial court granted the extension in June 2006, making it retroactive to March 29.

Then, after he acquired counsel, the plaintiff filed an amended complaint in July 2006 that included the required Rule 9(j) certification pleading.

“Luckily, my client was smart enough to go down to the court and get that [extension] signed. He just did his research, did his homework and did what he needed to do,” said Gugenheim, the plaintiff’s attorney.

“Then, he hired us, and we were able to get an expert to review the case.”

The defendant moved to dismiss the lawsuit, arguing that the plaintiff’s initial complaint failed to comply with Rule 9(j) and should have been barred by the statute of limitations as a result of that noncompliance.

Superior Court Judge Cy A. Grant Sr. granted the motion, but the Court of Appeals reversed.

“Even if the plaintiff’s original pro se complaint were treated as a legal nullity, the amended complaint, treated as an original complaint, filed within the extended limitations period, contains the requisite Rule 9(j) certification,” Jackson wrote for the majority.

“The purpose of the extension [in Rule 9(j)] is to give the plaintiff additional time to find experts,” Gugenheim said. “Once we were hired, we found an expert who was willing to testify that there had been a breach of the standard of care, and we filed a complaint that had the Rule 9(j) certification within the 120 days.

“Any other interpretation of the rule would have nullified the purpose of the extension,” the attorney said.

The dissent, however, offered a different interpretation of the rule.

“Allowing a plaintiff to file a medical malpractice complaint and then to wait until after the filing to have the allegations reviewed by an expert would pervert the purpose of Rule 9(j),” Elmore wrote.

Those two different interpretations will likely frame the debate if the case goes to the Supreme Court.

Said Harris, the defendant’s attorney, “I think it’s worthy of review.”

© 2009 Lawyers Weekly Inc., All Rights Reserved.

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