Unreasonable Expectations?

Clarity in pleadings’ rules benefits all parties. With clear requirements and minimal ambiguity, plaintiffs can rely on meeting the rules without getting cut off at the knees after a statute expires, defendants can make more informed decisions on whether to pursue the additional expense of a motion to dismiss, and trial judges have a manageable framework in which discretion may be applied without apprehension of reversal due to an unforeseeable difference of opinion.

Unfortunately, there is a significant degree of ambiguity in the “substantive requirement” of Rule 9(j) of the North Carolina Rules of Civil Procedure, resulting in debatable appellate decisions and few guidelines for practitioners. Additional legislative guidance providing needed clarity likely would benefit all parties while preserving the N.C. General Assembly’s intent of requiring that only qualified, actively practicing clinicians serve as expert witnesses.

In medical malpractice cases, the Rule 9(j) certification requirement serves as a gatekeeper. It provides, for the most part, straightforward, bright-line mandates, which are generally followed. For instance, where the word “review” had not been defined in the statute, the Hylton court refused to adopt a strict definition of “reviewing” paper records, as opposed to only a summary orally provided by the plaintiff’s attorney. Hylton v. Koontz, 138 N.C. App. 511, 515, 530 S.E.2d 108, 110 (2000). Compare that situation to one in which a review had not been completed before the statute of limitations expired; in that case, the court refused to extend the statute or apply the benefit of the Rule 41(a) voluntary dismissal savings provision. Estate of Barksdale ex rel. Farthing v. Duke Univ. Med. Ctr., 175 N.C. App. 102, 108, 623 S.E.2d 51, 56 (2005).

These bright lines fade, however, when analyzing whether an expert may be “reasonably expected” to qualify under Rule 702. In these situations, the Rule 9(j) analysis takes a different turn, inviting a degree of judicial discretion and providing skilled (or lucky) plaintiffs’ attorneys room to argue where additional legislative guidance may have resolved the issue. Most recently, in June 2012, this was illustrated with regard to Rule 702’s time-in-practice requirement in Moore v. Proper, ___ N.C. ___, 726 S.E.2d 812 (N.C. 2012).

Procedural & Substantive Requirements of Rules 9(j) and 702

Rule 9(j) requires complainants alleging medical malpractice to include a certificate that the medical records have been reviewed “by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence [or whom the complainant will seek to have qualified under Rule 702(e)] and who is willing to testify that the medical care did not comply with the applicable standard of care.” N.C.G.S. § 1A-1, Rule 9(j) (2012), Phillips v. Charlotte-Mecklenburg Hosp. Auth., 178 N.C. App. 234, 630 S.E.2d 742 (2006) (unpublished). If this requirement is not met, the complaint “shall be dismissed,” leaving the court no discretion. Thigpen v. Ngo, 355 N.C. 198, 202, 558 S.E.2d 162, 165 (2002) (“medical malpractice complaints have a distinct requirement of expert certification with which plaintiffs must comply”).

Most of the case law interpreting Rule 9(j) follows this strict language, though the “substantive requirement” incorporating Rule 702 provides some uncertainty. The time-in-practice requirement of Rule 702 calls for the majority of a practitioner’s “professional time” to be spent in the active clinical practice or instruction of students. When the defendant is a specialist, the witness must practice in the same specialty, or she must practice in a similar specialty (which includes performance of the subject procedure) and have experience treating similar patients. N.C.G.S. § 8C, Rule 702(b)(1). Similarly, when the defendant is a general practitioner, the witness must have devoted a majority of her “professional time” to either practicing as a general practitioner or instructing general practice medicine. Rule 702(c). Whether a reviewing expert was “reasonably expected” to qualify as an expert is reviewed de novoTrapp v. Maccioli,129 N.C. App. 237, 241, 497 S.E.2d 708, 711 (1998).

The de novo standard applies to all aspects of the review; the court does not seek out genuine issues of material fact or view the evidence in the light most favorable to the plaintiff, because “compliance clearly presents a question of law.” Barringer v. Forsyth County Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 256, 677 S.E.2d 465, 477 (2009) (internal citations and quotations omitted).

The Substantive Requirement and Judicial Discretion

The majority of cases addressing the “reasonable expectation” of compliance with Rule 702 reflect that the rule’s requirements are nearly as strict as those in Rule 9(j). For example, when a general surgeon completed the pre-filing review against a family practitioner, the court rejected the plaintiff’s claim that the two physicians practiced in “similar specialties” based upon a supposed nexus of providing emergency care; the court found that the general surgeon had only tangentially practiced emergency medicine, several years earlier. Allen v. Carolina Permanente Med. Group, P.A.,139 N.C. App. 342, 350, 533 S.E.2d 812, 817 (2000).

However, these cases also illustrate where the judicially applied “reasonable person” standard strays from the bright-line rules. In Trapp, the procedure at issue involved placement of central venous access by the defendant anesthesiologist. The plaintiff’s reviewing expert was an emergency medicine physician (admittedly a different specialty), who the plaintiff sought to have qualified under Rule 702(b)(1)(b) (practicing in a similar specialty which includes performance of the procedure at issue and prior experience treating similar patients). Id. at 241, 497 S.E.2d at 711. The plaintiff claimed that obtaining central venous access was a procedure “not driven by the treatment to follow.”

However, the trial court held that there was an “interplay” between obtaining central venous access and the treatment to follow. Id. The complaint was dismissed as failing to comply with Rule 9(j), in part because the expert admitted that whether there was a relationship between the type of access needed and the specific procedure was outside the scope of his specialty. Id. However, the appellate court reversed, explicitly concluding that “a reasonable person armed with the knowledge of the plaintiff at the time the pleading was filed would have believed” that the expert would qualify. Id.

Compare the Trapp case to Phillips, where the court excluded an expert (dismissing the case) based on a partial inconsistency between the certificate and the complaint. In Phillips, the plaintiff proffered an interventional cardiologist to criticize the care provided by a cardiothoracic surgeon; the wrong cardiac arteries had allegedly been grafted, resulting in an myocardial infarction and necessitating a second bypass procedure. The interventional cardiologist averred that his care routinely involved identifying the various cardiac arteries, which the plaintiff contested was the “procedure” at issue. The court rejected this argument, based upon two paragraphs from the complaint addressing the negligent performance of the grafting procedure (versus identification of arteries). 178 N.C. App. at ___, 630 S.E.2d at ___.

Of note, the previous two paragraphs in the complaint addressed the improper identification of the arteries. PhillipsRecord on Appeal at page 8. Based on the allegations regarding the grafting procedure, the court found that a reasonable person would not believe that the cardiologist would qualify under Rule 702 because he did not perform coronary artery grafting, “the subject of the complaint.” 178 N.C. App. at ___, 630 S.E.2d at ___.

Moore:  Active Clinical Practice Left Undefined

While these cases illustrate the sometimes subjective nature of Rule 9(j) appellate review, the North Carolina Supreme Court’s June decision in Moore v. Proper, ___ N.C. ___, 726 S.E.2d 812 (2012), illustrated the ambiguity of Rule 702’s time-in-practice requirement. In Moore, the Supreme Court found that the proffered expert — a retiree who worked approximately 25 working days per year, sporadically covering other dentists’ vacations and sick days — was reasonably expected to qualify under Rule 702. Moore sued after her jaw was fractured during a tooth extraction. Plaintiff’s complaint included a statement that Dr. Dunn, a retired dentist, had completed a review in apparent accordance with Rule 9(j); plaintiff also disclosed Dr. Dunn as her sole retained expert witness.

Following discovery, the defendants moved to dismiss pursuant to Rule 9(j), premised upon Dr. Dunn’s extremely limited involvement in the practice of dentistry following his retirement nine years before the procedure at issue. The evidence suggested that likely in the year prior to the occurrence, Dr. Dunn had filled in for colleagues somewhere between thirty days and 2.5 months, though he testified that in that year “less than five percent” of his time was spent in the active clinical practice of dentistry. Id. at 815. Otherwise, he spent the year serving on the city council (20-25 hours per week), running for mayor (which also took “a lot” of time), and spending time with his grandchildren. Moore v. Proper, ___ N.C. App. ___, 715 S.E.2d 586, 589 (2011).

The trial court granted summary judgment and dismissed the case based on noncompliance with Rule 9(j), finding that “[n]o reasonable person would have expected Dr. Joseph Dunn to qualify as an expert witness under Rule 702.” Id. A divided Court of Appeals reversed, finding that Dr. Dunn “could have been” reasonably expected to qualify. Id.(emphasis added); compare to the Trapp court’s “would have been” language, supra). A strong dissent from Judge Stephens argued that Dr. Dunn had not spent the majority of his professional time “engaged in active clinical dentistry” and therefore could not qualify under Rule 702. Id. at 596 (emphasis added). Judge Stephens questioned whether “professional time” should include other “quasi-professional activities like holding public office” but found more dispositive Dr. Dunn’s average clinical practice of 1.6 hours per week, noting that this was “not sufficiently active to qualify a proposed expert under Rule 702(b).” Id. at 594, 595. The Supreme Court declined to adopt Judge Stephens’ opinion but adopted her three-step analysis, which analyzed whether the expert was in the same health profession as the defendant, whether the expert was engaged in active clinical practice during the relevant time, and whether the majority of the expert’s “professional time” was devoted to that active clinical practice. Id. at Moore, ___ N.C. at ___, 726 S.E.2d at 818.

The court implicitly acknowledged the ambiguity in the second element, noting that whether clinical practice was “active” would turn on a variety of factors, including, without limitation, the total number of hours engaged in clinical practice, the type of work performed, and the regularity of such practice, which must be analyzed on a “totality of the circumstances” basis. Id. ___, 726 S.E.2d at 818-819.

The court provided no guidance on the prospective application of these factors, other than noting that they would prevent “absurd results,” such as allowing an expert when 100 percent of her professional time amounts to only twenty hours of clinical practice per year. Id. at ___, 726 S.E.2d at 819. With regard to Dr. Dunn, the court concluded that Dr. Dunn’s practice of somewhere between thirty days and 2.5 months “was reasonably likely to amount to active clinical practice,” without addressing Dr. Dunn’s own statements regarding his professional time. Id. (emphasis added). In addition, the court felt that Dr. Dunn’s continuing education classes would lend “at least some degree of insight” into the standard of care. Id.

However, the third element of the Supreme Court’s analysis provided the basis for affirming the Court of Appeals’ decision. The Supreme Court adopted a narrow definition of “professional time,” holding that this was limited to the actual time spent in the “profession of which he or she is being proffered as an expert.” Id. Based on this definition, Dr. Dunn’s “professional time” was limited to that time he spent in the field of dentistry — his political career notwithstanding — all of which was spent seeing patients; thus, according to the court, he satisfied the applicable test. Because he met all three factors, the court found that the plaintiff “reasonably expected” Dr. Dunn would qualify as an expert witness (thought it explicitly reserved judgment as to whether Dr. Dunn actually would qualify). Id.

Justice Newby wrote a divergent concurrence in the outcome, accepting the framework provided by the majority but criticizing the majority’s application of the facts to it. In short, he noted the legislative intent in drafting Rule 9(j) was to eliminate the use of professional “hired guns” and retired physicians as expert witnesses. He acknowledged that the latter two factors in the analysis were likely to ensure qualified practitioners testified, while excluding hired guns, but permitting part-time practitioners to be qualified. Id. at ___, 726 S.E.2d at 822. Like Judge Stephens below, Justice Newby endorsed the trial court ruling, concluding that Dr. Dunn had not engaged in the “active” clinical practice sufficient to qualify under Rule 702, mostly because his involvement was “scattered,” with several months passing in between clinical appearances. Id. Somewhat curiously, he ultimately agreed to reverse the trial court because the plaintiff did not have the benefit of the higher court’s ruling at the time of filing. Id. at ___, 726 S.E.2d at 823-24.

An Empty Framework Necessitates Legislative Guidance

The Moore court’s decision provides a framework for analysis without the clarity sufficient to give Rule 9(j) true “gatekeeper” teeth. In many cases, this framework will provide a context; at the very least, “professional time” has been defined to include only the time dedicated to the profession for which the witness is being offered, excluding unrelated work. However, practitioners are left with no clear rule on what constitutes “active” clinical experience (other than a possible “floor” of at least 20 hours per year). Indeed, both Judge Stephens and Justice Newby provide specific examples of why Dr. Dunn’s clinical practice (an average of 1.6 hours spent practicing dentistry per week, on a “scattered” schedule) should not be considered “active.” However, the majority premised its holding upon Dr. Dunn’s continuing education credits and its finding that his hours that were “reasonably likely” to amount to active clinical practice. Id. at ___, 726 S.E.2d at 720.

Admittedly, Dr. Dunn falls somewhere between a retiree (which the legislature sought to prevent from testifying) and a part-time practitioner (the qualification of whom the legislature sought to protect). Nevertheless, by providing some additional, minimum guidelines, the legislature can ensure only qualified experts complete Rule 9(j) reviews, while not unfairly excluding true part-time, but still active, clinical practitioners. Indeed, the legislature already requires that experts be of the same or similar specialties as those whose care they intend to criticize; is it significantly different to require these experts to contribute some minimum amount of “professional time” each week or month? Some hard threshold of “professional time,” perhaps an average weekly minimum of 20 hours, would preserve the legislature’s intent while providing the clarity that will benefit all parties. When there is ambiguity allowing so many of our learned jurists to arrive at such different conclusions, legislative guidance seems necessary.

End Note:
A brief overview of the many different types of and purposes for central venous access catheters may be found at the Stanford School of Medicine’s web site.

As appeared in:   “Prognosis,” Jan. 2013 (newsletter of North Carolina Bar Association’s Health Law Section)

Joseph L. Nelson

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