Cary Attorney D. Hardison Wood was asked to draft an Amicus Brief for a Supreme Court Appeal. Read about his success below:
The North Carolina Supreme Court ruled in Vaughan v. Mashburn that plaintiff’s may now amend a deficient Rule 9(j) where they have substantively complied with the Rule prior to filing the original complaint. This sounds like it should already be the rule, but until this week, it wasn’t.
This is a major step forward in what had become a game of legal “gotcha!” and had reduced North Carolina’s courts to a series of increasingly hard to defend legal opinions.
The 2011 amendments to Rule 9(j) changed the “magic words” necessary for a medical malpractice plaintiff to plead in their complaint, but kept the substantive requirement of a pre-filing expert review in tact. Many plaintiffs, such as the one here, had substantively complied with the rule prior to filing. This means they had an expert that had reviewed their care and was willing to testify that the defendant did not comply with the standards of practice. In other words, they had another physician review all the records and determine the defendant was negligent.
However, in the body of their complaint, these plaintiffs used the “old” magic words under the pre-2011 version of the Rule. The defense moved for dismissal because of the failure to include the “new” magic words. These cases were being dismissed for failure to comply with Rule 9(j), even though the only way in which the plaintiff did not comply was by failing to plead a series of newly changed specific words.
Ordinarily, such a pleading error would be corrected under Rule 15 by an amendment to the complaint. However, the defense argued in these medical malpractice actions that strict compliance forbade the use of such a mechanism.
Fortunately, the Supreme Court ruled that there is no such command in the Rule (indeed, there isn’t). Now, many plaintiffs in North Carolina whose cases faced dismissal because of a technical pleading error will be allowed to amend their lawsuit to include the “new” magic words. Of course, if these plaintiffs did not actually comply with the Rule before filing, they will still face dismissal.
An amicus brief was filed on behalf of the plaintiff by the North Carolina Advocates for Justice. Hardison Wood and Ellis Boyle were the co-authors of this brief. In the opinion issued this week, a unanimous Supreme Court echoed much of the same legal rationale the amicus writers advanced.
We are proud to have assisted clarifying the law on this important issue and we are ever mindful that lawsuits are a procedure designed to ascertain the truth. This process should not be relegated to word play. Thankfully, in North Carolina at least, it no longer is.