Published: Wednesday, October 3, 2001 4:44 a.m. EDT

N.C. law unfair to malpractice plaintiffs, court rules

By GARY D. ROBERTSON, The Associated Press The state Court of Appeals on Tuesday struck down a law that requires a patient suing for medical malpractice to have on hand an expert willing to testify or face the lawsuit's dismissal.

          This rule of civil procedure, designed by the General Assembly in 1995 to weed out frivolous medical lawsuits, violates the state and U.S. constitutions, Judge Edward Greene wrote in a majority opinion.The court ruled that a woman who accused North Carolina Baptist Hospital and some physicians of poor care could still sue even though she didn't show in her lawsuit that an expert had reviewed her case.

          Greene said the rule is unfair because the legislature has impaired the rights of some people to access the courts to seek recompense for an injury."In this case, the General Assembly has placed a restriction on a party's right to file a malpractice claim against a 'health-care provider,"' Greene wrote.

       The law, called Rule 9(j), says any medical malpractice lawsuit against a provider for failing to meet a standard of care will be dismissed unless the plaintiff meets some provisions.One provision requires the plaintiff to have a person lined up who probably will qualify as an expert witness in court to review the case. That person must be willing to testify the patient received substandard care.

       The decision was praised by the state trial lawyers' group, which has sought a repeal of the rule approved during a wave of tort reform when Republicans controlled the state House.

         The rule places a heavy burden on defendants to accumulate evidence to be reviewed by an expert before a lawsuit is filed, said Stella Boswell with the North Carolina Academy of Trial Lawyers."You really have to prove your case before you file it, and no one else has to meet that standard," Boswell said.

         The North Carolina Medical Society, which represents physicians, called the rule a simple one to determine that allegations are reasonable.The state Supreme Court could make the final judgment on the rule.If the opinion stands, "It's going to have expensive consequences for the public and for business," said Steve Keene, a society spokesman.

        In the case before the three-judge panel, Margaret Wrenn Anderson sued three physicians, North Carolina Baptist Hospital and others in Guilford County court.

       Anderson said the hospital and doctors were negligent for failing to inform her fully of the risks associated with the drug gentamicin, which she said burned out her ear and led to equilibrium problems. She said she received the drug after treatment for a kidney problem when she came to the Baptist Hospital emergency room in 1996.

       Anderson sued because the doctors and hospital failed to warn her about the drug's side effect and failed to used a monitoring test.Anderson, described as having a very limited income, tried to find an expert witness but couldn't get one because it would be difficult for someone to testify about a test that was never taken, her lawyer said.

    Superior Court Judge James Vosburgh dismissed the case in December 1999, ruling Anderson had failed to follow rule 9(j). The appeals court, ruling 2-1, reversed Vosburgh's decision and ordered the case sent back for trial.

     Greene said the rule violates the equal protection clause of the federal and state constitutions because it treats people who sue for medical malpractice differently than those who sue for non-medical malpractice.

      He wrote there's a better way to discourage frivolous lawsuits than the expert witness requirement, which he said takes a decision on the merits of a claim out of the hands of a judge.

        When "the injured party is unable to timely find an expert or is without funds to employ such an expert ... [the requirement] prohibits the filing of any medical malpractice claim," Greene wrote.Other states weed out frivolous lawsuits through medical review panels that examine claims before a lawsuit is filed, he said.Judge Linda McGee sided with Greene.

        In his dissent, Judge Hugh Campbell said filing a medical malpractice claim is not a fundamental right."I view rule 9(j) as a permissible attempt by our General Assembly to define the circumstances under which relief will be available to an injured plaintiff in certain medical malpractice contexts," he wrote.

An attorney for Anderson did not return a phone call seeking comment. Robert Ford, a Greensboro lawyer for the physicians, said there's a good chance the case will be appealed to the Supreme Court.

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