The case arose from a medical malpractice complaint filed without the requisite boilerplate language in Rule 9(j) of the Rules of Civil Procedure which requires a plaintiff to specifically assert that “the medical care and all medical records pertaining to the alleged negligence . . . have been reviewed” by someone reasonably expected to qualify as an expert. Plaintiff had actually had a medical expert review her medical records as required by state law but did not follow the technical requirements of Rule 9(j). Plaintiff conceded that her 9(j) certification omitted the required assertion that “all medical records pertaining to the alleged negligence that are available to plaintiff after reasonable inquiry” were reviewed by the medical expert.
After the plaintiff’s statute of limitations expired, Chip Holmes, who represented the defendants, appropriately filed a motion to dismiss pursuant to Rule 12(b)(6) based on the plaintiff’s technical failures to comply with Rule 9(j). Plaintiff then sought to amend her complaint to comply with Rule 9(j). The trial court granted the defendant’s motion to dismiss and denied plaintiff’s motion to amend. Plaintiff appealed.
In a June 21, 2016 opinion, the Court of Appeals reluctantly agreed with the trial court and affirmed the trial court’s dismissal of the plaintiff’s complaint on the basis that the plaintiff’s original complaint and certification did not track the statutory language of Rule 9(j). The Court of Appeals felt “compelled by precedent to reach ‘a harsh and pointless outcome’ as a result of ‘a highly technical failure’ by [plaintiff’s trial counsel.”
However, 10 days later on July 1, 2016, the Court of Appeals withdrew its opinion dismissing the medical malpractice lawsuit in response to plaintiff’s motion. The Court of Appeals did not provide any reasoning for its decision to withdraw its opinion. It now appears that defendants can no longer rely on the technicalities of 9(j) compliance as a basis for having a case dismissed where the evidence shows that the plaintiff did in fact secure an expert review prior to the filing of the compliant.
Synopsis provided by Erin M. Young, Hall Booth Smith, P.C.
