Medical Malpractice Litigation in North Carolina: An Overview of Relevant Statutes, Case Law

and Publications
By Martin A. Ginsburg, BSN, RN


Table of Contents

Purpose and Scope ...........................................................................................................................2
Applicable Law ................................................................................................................................4
1A-1. Rules of Civil Procedure
Rule 9(j) Pleading special matters ........................................................................4
Rule 16 - Pre-trial procedure ....................................................................................4
Rule 26 - General provisions governing discovery..................................................5
90-21.11 - Definitions .......................................................................................................5
90-21.12. Standard of health care .....................................................................................5
90-21.12A. Nonresident physicians ..................................................................................5
8C-1. Opinions and Expert Testimony Rule 702 ..............................................................5
Annotated Bibliography
Case Law
United States Supreme Court
Daubert v. Merrell Dow Pharmaceuticals, Inc .......................................................7
North Carolina Courts
Moore v. Proper .......................................................................................................7
Brown v. Kindred Nursing Centers East ..................................................................8
Trapp v. Maccioli .....................................................................................................8
Crocker v. Roethling .................................................................................................8
Robinson v. Duke University Health Systems, Inc. ..................................................9

J ournal Articles
Robert J enkins, 3 Charlotte L. Rev. 375 ..................................................................9
J effery A. Parness & Amy Leonetti, 1997 BYU L. Rev. 538 ..................................9
LeVonda Wood, 25 Campbell L. Rev. 219 .............................................................10
Katherine Flynn Henry & Phillip J ackson, 17 N.C. State Bar J . no. 1 ..................10
J oe Nelson, Prognosis, 29 N.C.B.A. Health L. Sec. 1 ...........................................10
David M. Studdert, et al, 354 New Eng. J . Med. 2024 ..........................................10
Philip G. Peters, 37 Wake Forest L. Rev. 757 ........................................................10

Encyclopedia and Annotations
16 Am. J ur. Trials 471, (1969) ..............................................................................11
J ay M. Zitter, Annotation, Standard of care owed to patient by medical specialist
as determined by local, "like community," state, national, or other standards, 18
A.L.R.4th 603 ........................................................................................................11
33 Am. J ur. Proof of Facts 2d 1, 4, 5, 6, 7, 7.5, and 8 ......................................11


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Purpose and Scope

The issue of medical malpractice has long been a sticking point in public policy
discussions, especially those related to healthcare and healthcare financing. Tort reform has
enjoyed a prominent place in this discussion and is frequently the central focus of policy makers
throughout the nation.
Medical and healthcare practitioners have often described a practice environment that
requires them to subordinate their professional judgment to cookie cutter practice patterns that
fail to appropriately address the needs of their patients. The term defensive medicine is used to
describe the testing and diagnostic procedures conducted that providers would not normally
employ universally but, rather, only when indicated by the presenting condition of their patients.
These added tests are frequently cited as a fundamental cause of significant increases in the cost
of the provision of healthcare in the United States.
Patient and family expectations and a failure to meet those expectations, even those that
are not reasonable under a given set of circumstances, is also seen as a cause for the perceived
excessively litigious practice environment. The experience of both patients and families can
often have an impact on whether civil action is taken against a provider and this has been a focus
in healthcare circles for some time. During the 1990s a number of hospitals, especially in larger
metropolitan areas and those operating as teaching facilities began routinely permitting, even
requesting, family presence during resuscitative efforts. A number of subsequent reports and
discussions indicated that hospitals doing so saw a decrease in litigation and its associated costs
despite no change in morbidity and mortality statistics. This is believed to be the case because a
family witnessing the efforts made to rescue a loved one will often recognize the effort expended
to rescue their loved one and realize that there is a point at which these efforts become futile and
generally are more accepting of adverse outcomes.
Even with these changes in perception, there is at least some agreement that when
medical malpractice does occur, those affected ought to have recourse to repair the harm caused
by practitioners failing to adhere to the most fundamental standards of their profession.
Legislatures and courts across the nation have struggled with this dilemma for more than 40
years. This portfolio seeks to provide an overview of the subject and describe the changes that
have occurred in North Carolina in an effort to address this important subject.
The North Carolina General Assembly, in 1995, began to address medical malpractice
litigation in an effort to assure practitioners that lawsuits will have been pre-reviewed by experts
expected to testify in order to assure that complaints are filed for reasonable cause, rather than
based only on results that might otherwise have been unavoidable. This legislative effort resulted
in changes to the North Carolina Rules of Civil Procedure to provide a gatekeeper clause
requiring plaintiffs to secure a review of care rendered by an expert who could be expected to
testify as to causation and damages. Combined with Rule 702, this effort was undertaken to
strike the balance between protection of the public and controlling health care costs through a

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reduction in litigation expenses. These changes have, in fact, been perceived as brining some
modicum of stability and predictability to the legal implications of the practice of medicine.


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Part I: Applicable Law

This portion of this portfolio seeks to readers with fundamental information, both within this
document and through links to internet providers of additional material regarding the statutes
governing issues related to medical malpractice litigation in North Carolina.

1. N.C. Gen. Stat. 1A-1. Rules of Civil Procedure.

Rule 9. Pleading special matters.

(j) Medical malpractice. Any complaint alleging medical malpractice by a health care
provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care
under G.S. 90-21.12 shall be dismissed unless:
(1) 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;
(2) 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 that the complainant will
seek to have qualified as an expert witness by motion under Rule 702(e) of the
Rules of Evidence and who is willing to testify that the medical care did not
comply with the applicable standard of care, and the motion is filed with the
complaint; or
(3) The pleading alleges facts establishing negligence under the existing
common-law doctrine of res ipsa loquitur.
http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-
1,_Rule_9.html

2. N.C. Gen. Stat 1A-1. Rules of Civil Procedure.

Rule 16. Pre-trial procedure; formulating issues.

(b) In a medical malpractice action as defined in G.S. 90-21.11, at the close of the
discovery period scheduled pursuant to Rule 26(g), the judge shall schedule a final conference.
After the conference, the judge shall refer any consent order calendaring the case for trial to the
senior resident superior court judge or the chief district court judge, who shall approve the
consent order unless the judge finds that:
(1) The date specified in the order is unavailable,
(2) The terms of the order unreasonably delay the trial, or
(3) The ends of justice would not be served by approving the order.
If the senior resident superior court judge or the chief district court judge does not approve
the consent order, the judge shall calendar the case for trial.

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In calendaring the case, the court shall take into consideration the nature and complexity of
the case, the proximity and convenience of witnesses, the needs of counsel for both parties
concerning their respective calendars, the benefits of an early disposition and such other matters
as the court may deem proper. (1967, c. 954, s. 1; 1987, c. 859, s. 4; 2011-199, s. 1.)
http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-
1,_Rule_16.html

3. N.C. Gen. Stat 1A-1. Rules of Civil Procedure.

Rule 26. General provisions governing discovery.

(f1) Medical malpractice discovery conference. In a medical malpractice action as
defined in G.S. 90-21.11, upon the case coming at issue or the filing of a responsive pleading or
motion requiring a determination by the court, the judge shall, within 30 days, direct the
attorneys for the parties to appear for a discovery conference.
http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_1A/GS_1A-
1,_Rule_26.html

6. N.C. Gen. Stat. 90-21.11. Medical Malpractice Actions. Definitions.

This section of the North Carolina General Statutes defines:
(1) Health care provider.
(2) Medical malpractice action.
http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_90/GS_90-
21.11.html

7. N.C. Gen. Stat. 90-21.12. Standard of health care.

This section of the North Carolina General Statutes explains the standards of care applicable
in medical malpractice actions.
http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_90/GS_90-
21.12.html

8. N.C. Gen. Stat. 90-21.12A. Nonresident physicians.

A patient may bring a medical malpractice claim in the courts of this State against a
nonresident physician who practices medicine or surgery by use of any electronic or other media
in this State. (1997-514, s. 2.)
http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_90/GS_90-
21.12A.html

9. N.C. Gen. Stat. 8C-1. Opinions and Expert Testimony.

Rule 702. Testimony by experts.


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(b) In a medical malpractice action as defined in G.S. 90-21.11, a person shall not give
expert testimony on the appropriate standard of health care as defined in G.S. 90-21.12 unless the
person is a licensed health care provider in this State or another state and meets the following
criteria:
(1) If the party against whom or on whose behalf the testimony is offered is a
specialist, the expert witness must:
a. Specialize in the same specialty as the party against whom or on
whose behalf the testimony is offered; or
b. Specialize in a similar specialty which includes within its specialty the
performance of the procedure that is the subject of the complaint and
have prior experience treating similar patients.
(2) During the year immediately preceding the date of the occurrence that is the
basis for the action, the expert witness must have devoted a majority of his or
her professional time to either or both of the following:
a. The active clinical practice of the same health profession in which the
party against whom or on whose behalf the testimony is offered, and if
that party is a specialist, the active clinical practice of the same
specialty or a similar specialty which includes within its specialty the
performance of the procedure that is the subject of the complaint and
have prior experience treating similar patients; or
b. The instruction of students in an accredited health professional school
or accredited residency or clinical research program in the same health
profession in which the party against whom or on whose behalf the
testimony is offered, and if that party is a specialist, an accredited
health professional school or accredited residency or clinical research
program in the same specialty.
(c) Notwithstanding subsection (b) of this section, if the party against whom or on whose
behalf the testimony is offered is a general practitioner, the expert witness, during the year
immediately preceding the date of the occurrence that is the basis for the action, must have
devoted a majority of his or her professional time to either or both of the following:
(1) Active clinical practice as a general practitioner; or
(2) Instruction of students in an accredited health professional school or
accredited residency or clinical research program in the general practice of
medicine.
(d) Notwithstanding subsection (b) of this section, a physician who qualifies as an expert
under subsection (a) of this Rule and who by reason of active clinical practice or instruction of
students has knowledge of the applicable standard of care for nurses, nurse practitioners,
certified registered nurse anesthetists, certified registered nurse midwives, physician assistants,
or other medical support staff may give expert testimony in a medical malpractice action with
respect to the standard of care of which he is knowledgeable of nurses, nurse practitioners,
certified registered nurse anesthetists, certified registered nurse midwives, physician assistants
licensed under Chapter 90 of the General Statutes, or other medical support staff.
(e) Upon motion by either party, a resident judge of the superior court in the county or
judicial district in which the action is pending may allow expert testimony on the appropriate
standard of health care by a witness who does not meet the requirements of subsection (b) or (c)
of this Rule, but who is otherwise qualified as an expert witness, upon a showing by the movant

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of extraordinary circumstances and a determination by the court that the motion should be
allowed to serve the ends of justice.
(f) In an action alleging medical malpractice, an expert witness shall not testify on a
contingency fee basis.
(g) This section does not limit the power of the trial court to disqualify an expert witness
on grounds other than the qualifications set forth in this section.

http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_8C/GS_8C-
702.html


Part II: Annotated Bibliography


Case Law

United States Supreme Court

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

In a unanimous ruling the court summarized its opinion by stating:
"General acceptance" is not a necessary precondition to the admissibility of
scientific evidence under the Federal Rules of Evidence, but the Rules of
Evidence especially Rule 702do assign to the trial judge the task of ensuring
that an expert's testimony both rests on a reliable foundation and is relevant to the
task at hand. Pertinent evidence based on scientifically valid principles will satisfy
those demands.
http://www.law.cornell.edu/supct/html/92-102.ZO.html

North Carolina Courts

1. Expert Witness Qualification Under Rules 9(j) and 702

In Moore v. Proper, 726 S.E.2d 812, 366 N.C. 25 (2012) the court noted that:

Rule 9(j) serves as a gatekeeper, enacted by the legislature, to prevent frivolous
malpractice claims by requiring expert review before filing of the action. Thigpen,
355 N.C. at 203-04, 558 S.E.2d at 166. Rule 9(j) thus operates as a preliminary
qualifier to "control pleadings" rather than to act as a general mechanism to
exclude expert testimony. See id. Whether an expert will ultimately qualify to
testify is controlled by Rule 702. The trial court has wide discretion to allow or
exclude testimony under that rule. Bullard, 312 N.C. at 140, 322 S.E.2d at 376.
However, the preliminary, gatekeeping question of whether a proffered expert

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witness is "reasonably expected to qualify as an expert witness under Rule 702" is
a different inquiry from whether the expert will actually qualify under Rule 702.
http://scholar.google.com/scholar_case?case=14294038002451238698

2. Amended Filings and Extensions and Rule 9(j) Compliance
Brown v. Kindred Nursing Centers East, 364 N.C. 76, 692 S.E.2d 87 (2010).

The North Carolina Supreme Court upheld a dismissal for failure to comply with Rule 9(j)
finding:

Even though the limitations period can be extended for 120 days under Rule 9(j),
this extension is for the limited purpose of filing a complaint. There is no
language in Rule 9(j) that indicates this time period can also be used, as plaintiff
did here, to locate a certifying expert, add new defendants, and amend a defective
pleading.
http://scholar.google.com/scholar_case?case=10085465778785232633

3. Qualifying Expert Under Rule 702 and Reasonable Belief

Trapp v. Maccioli, 497 S.E.2d 708, 129 N.C. App. 237 (Ct. App. 1998).

The Court of Appeals ruled in this case that questions regarding an experts qualifications do not
preclude filing of a complaint under rule 9(j) and that failure to qualify an expert under Rule 702
is not evidence of lack of a reasonable belief that an expert reviewing medical records on behalf
of a plaintiff is not grounds for dismissal of the complaint by stating:

The disqualification of a Rule 9(j) witness under Rule 702 does not necessarily
require the dismissal of the pleadings. The question under Rule 9(j) instead is
whether it was "reasonably expected" that the witness would qualify under Rule
702. In other words, were the facts and circumstances known or those which
should have been known to the pleader such as to cause a reasonable person to
believe that the witness would qualify as an expert under Rule 702. See Black's
Law Dictionary 1265 (6th ed. 1990) (defining reasonable belief).
http://scholar.google.com/scholar_case?case=10085465778785232633

4. Expert Qualifications and Same or Similar Specialty or Community

Crocker v. Roethling, 675 S.E.2d 625, 363 N.C. 140 (2009).

In this case the Court held that the trial court failed to properly apply Rule 702, finding:


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We note that the ruling at issue here occurred at the hearing solely calendared for
the motion for summary judgment, not for a motion to exclude testimony. In fact,
our review of the record reveals no motion to exclude, written or oral, nor was
any motion to exclude listed on the calendar notice. Moreover, the reasons given
in the transcript for the ruling (none appear in the order) include: that Dr. Elliott's
information about Goldsboro showed that its hospital was different from the one
in Phoenix where he practices; that all of the hospitals where Dr. Elliott has
practiced are larger than the one in Goldsboro; and that "the Court finds that the
[witness] was testifying . . . to a national standard of care and will exclude the
evidence of that expert." We conclude that this ruling and the order based
thereupon result from a misapplication of Rule 702 and N.C.G.S. 90-21.12.
http://scholar.google.com/scholar_case?case=11150864072005596109

5. The Application of res ipsa loquitur

Robinson v. Duke University Health Systems, Inc., No. COA12-1239 (N.C. Ct. App. Aug. 20,
2013).

Despite the lack of citable precedence, the court reviewed a dismissal and affirmation,
overturning and remanding for inconsistent rulings related to Rule 9(j) in a case presented under
the doctrine of res ipsa loquitur. The trial court after an initial remand from the Court of Appeals
led to a second trial court inappropriately addressing findings of the first trial court to rule on
pleadings and motions.
http://scholar.google.com/scholar_case?case=11150864072005596109

Journal Articles

1. Robert J enkins, Defensive Medicine: The First Sixteen Years of North Carolina Medical
Negligence Litigation under NCRCP 9(j) and NCRE 702, 3 Charlotte L. Rev. 375, Summer 2012.
375-467

The author provides a review of the impact of North Carolinas Rules 9(j) and 702 on
plaintiffs ability to access the courts for relief in cases of medical malpractice while working to
reduce claims with manifestly insufficient basis to support a claim of relief.


2. J effery A. Parness & Amy Leonetti, Expert Opinion Pleading: Any Merit to Special
Certificates of Merit?, 1997 BYU L. Rev. 538

The authors examine gatekeeper statutory provisions and their efficacy in reducing the
workload of the courts by limiting litigation filings to those supported by expert review and
secured testimony prior to the filing of initial complaints.
Page
10

3. LeVonda Wood, Rule 9(j) - Is Requiring a Plaintiff in a Medical Malpractice Action to Certify
His or Her Claim Before Filing Unconstitutional? - The Issue in Anderson v. Assimos, 25
Campbell L. Rev. 219 (2003).

In October 2001, the North Carolina Court of Appeals addressed whether Rule 9(j) was
constitutional. While the majority held that the statute violates the "due course of law" provision
of article 1, section 18 of the North Carolina Constitution, the Supreme Court of North Carolina
concluded the Court of Appeals improperly addressed the constitutionality of Rule 9(j) and
dismissed Anderson's appeal.

4. Katherine Flynn Henry & Phillip J ackson, Sweeping Changes to Medical Malpractice Law
Point/Counterpoint, 17 N.C. State Bar J . no. 1, Spring 2012, at 12.

The authors of this article work to summarize the nature of tort reform and its anticipated
impact of the reform on litigation in North Carolina. This review examines the overarching
effects of tort reform legislation to both plaintiffs and defendants.

5. J oe Nelson, Unreasonable Expectations? Ambiguity in Rule 9(j) Relaxes the Statutes
Gatekeeper Function, Prognosis, 29 N.C.B.A. Health L. Sec. 1 (2013)

The author discusses N.C. Rules of Civil Procedure 9(j) and 702 and their interaction
describing that the reasonable person standard of 9(j) fails to provide a bright line standard
that would likely reduce uncertainty among health care providers regarding litigation probability.

6. David M. Studdert, Michelle M. Mello, Atul A. Gawande, Tejal K. Gandhi, Allen Kachalia,
Catherine Yoon, Ann Louise Puopolo, & Troyen A. Brennan, Claims, Errors, and Compensation
Payments in Medical Malpractice Litigation, 354 New Eng. J . Med., 2024-33 (2006).

The authors of this article published in a medical journal included attorneys, physicians,
nurses, and others in an effort to develop a statistical review of the data underlying nationwide
calls for tort reform sparked by perceptions of frequent frivolous lawsuits as well as excessive
judgments.

7. Philip G. Peters, Empirical Evidence and Malpractice Litigation, 37 Wake Forest L. Rev. 757
(2002)
The author discusses statistical analysis of normal variations in medical practice and the
capacity of presentation of these analyses to clarify practice settings and situations for finders of
fact in medical malpractice litigation.
http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1312&context=facpubs

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Encyclopedia and Annotations

1. 16 Am. J ur. Trials 471, (1969)

2. J ay M. Zitter, Annotation, Standard of care owed to patient by medical specialist as
determined by local, "like community," state, national, or other standards, 18 A.L.R.4th 603
(1982)

3. 33 Am. J ur. Proof of Facts 2d 1, 4, 5, 6, 7, 7.5, and 8 (1983)