No expert, no lawsuit? No longer

Many states require an expert's "pre-certification" when plaintiffs file malpractice claims. But a high-profile court case in North Carolina could change that.

By Berkeley Rice
Senior Editor

Margaret Anderson showed up at the ED of North Carolina Baptist Hospital in Winston-Salem, NC, in August 1996. She was admitted for a recurring kidney problem. Urologist Dean Assimos prescribed the antibiotic gentamicin, which Anderson took for several days as an inpatient. By the time she returned home, she felt dizzy and nauseous, with intense pressure in her ears.

A few days later, her son brought her back to the hospital—this time in a wheelchair, because her equilibrium was so bad that she could no longer walk on her own. Again Assimos examined her. Despite her symptoms, he allegedly told her nothing was wrong, and suggested she return in a month.

In September, when Anderson's condition hadn't improved, Assimos admitted her again for several days of tests, which revealed that she'd had a stroke and had developed an ulcer. Later, another Baptist doctor allegedly told her that the gentamicin had "burned out her ear," causing her equilibrium problems.

Eventually, her kidney stopped functioning, and doctors had to remove it. Now 73, she continues to suffer from nausea and dizziness, and needs a cane and a walker to get around.

Anderson decided to sue the doctors and the hospital for malpractice, but she had difficulty finding a lawyer willing to take her case because it wasn't financially attractive. She was elderly and retired, so she wouldn't be able to claim much in lost earnings. And although the effects of her injury might be permanent, they weren't as dramatic as a brain injury, say, or the loss of a leg, and thus wouldn't have the same emotional impact on a jury.

One plaintiffs' lawyer sent her records to a pharmacologist for review, but that expert claimed he couldn't render an opinion because the hospital hadn't conducted enough tests to determine the drug's effect.

A dismissal doesn't end things

In August 1999, just before the statute of limitations ran out, Anderson turned to her own attorney, Mary Nicholson. Though a generalist with little experience in malpractice law, Nicholson agreed to take the case on a contingency basis. She filed Anderson's suit against Assimos, two other treating physicians, and North Carolina Baptist Hospital.

The suit alleged that they had failed to warn Anderson of the risks "known to be associated with" gentamicin; that they hadn't properly monitored her use of the drug; and that their negligence had caused her injuries.

The defendants moved for dismissal, noting that the suit wasn't accompanied by a statement from a qualified expert who had reviewed Anderson's claim and would testify to the alleged negligence. Such a statement is required by a 1995 North Carolina law known as Rule 9(j), passed in response to complaints by the North Carolina Medical Society and other state medical and business groups about frivolous malpractice lawsuits.

At a pretrial hearing on the motion for dismissal, Nicholson explained that her client was an elderly woman with very limited income, so she couldn't afford the cost of a medical expert. Nevertheless, the trial judge granted the defendants' motion.

Nicholson appealed the dismissal, arguing that Rule 9(j) unduly restricts her client's access to the courts and violates the equal protection clauses of the state and federal constitutions.

The appellate court rules against the need for experts

In a 2-to-1 decision issued last October, the North Carolina Court of Appeals reinstated Anderson's suit. According to the majority opinion, written by Judge K. Edward Greene, the state constitution guarantees that every citizen "shall have remedy by due course of law for an injury done him in his lands, goods, person, or reputation," and that "right and justice shall be administered without favor, denial, or delay." The state legislature, Greene continued, is therefore "clearly forbidden" from enacting any statute that "impairs" a citizen's right of recovery for an injury.

The appellate court held that Rule 9(j)'s expert opinion requirement creates just such a restriction, particularly in cases "where the injured party is unable to timely find an expert, or is without funds to employ such an expert, or find an attorney who is willing to advance the funds to employ an expert."

Even if the patient does manage to find an expert, the law "places in the hands of that expert the right to decide if the injured party may proceed . . . with her claim." That right, Greene pointed out, is reserved for the courts, not the experts. The court found no evidence that frivolous medical malpractice suits had been a particular burden before the passage of Rule 9(j), nor that the law had alleviated the supposed problem.

Greene noted that many states have addressed the issue by creating medical review panels to which malpractice claims must be presented before a suit is filed. Although the panels are designed to weed out frivolous claims and encourage early settlement of legitimate ones, they don't deny access to the courts since their recommendations aren't binding.

Noting that no similar pre-certification requirement exists for plaintiffs filing nonmedical injury claims, the appellate court concluded that Rule 9(j) "violates the equal protection clauses of both the federal and state constitutions."

The case begins to attract national attention

The defendants have appealed the case to the North Carolina Supreme Court, hoping the state's high court will overturn the appellate decision. They argue that Rule 9(j) doesn't unduly deny a plaintiff access to the courts, and doesn't deprive parties with medical malpractice claims of equal protection of the law. By declaring Rule 9(j) unconstitutional, they claim, the appellate court has "improperly invaded and usurped" the power of the state's legislature.

Because many states have similar laws requiring pre-certification by a medical expert, this case has drawn the attention of the American Medical Association and the Association of Trial Lawyers of America, as well as state medical and legal organizations. The North Carolina Medical Society, joined by the state's hospital association and various specialty societies and business groups, has filed an amicus brief supporting the defendants.

Courts in several states have upheld pre-certification laws, but courts in several others have declared them invalid. Although the North Carolina Supreme Court's decision in the Anderson case will technically apply only to that state, it could have a broader effect because of the publicity the case has attracted in legal circles.

Stella Boswell, legal counsel to the North Carolina Academy of Trial Lawyers, hopes so. She believes Rule 9(j) puts an unfair burden on malpractice plaintiffs because "it requires them to prove their cases before they're filed." Since no discovery is allowed until a case is filed, she points out, plaintiffs may be unable to obtain the information needed to enable a medical expert to certify their claims. That amounts to denial of due process.

She also agrees with the appellate decision that Rule 9(j) violates the principle of equal protection: "No other plaintiff in this state is required to prove their case in advance. What is it about doctors that should give them this protection?"

 

Berkeley Rice. No expert, no lawsuit? No longer. Medical Economics 2002;10:34.