A unanimous three-judge panel of the N.C. Court of Appeals upheld this morning most of a trial court’s ruling throwing out a medical malpractice suit against Duke University Health Systems on primarily technical grounds. But the case prompted Judge Sanford Steelman to write a concurring opinion designed to draw legislators’ attention to a problem.

I write separately to distinguish the reasoning underlying that result from the circumstances presented in the cases cited in the majority opinion and also to draw our General Assembly’s attention to the possibly unforeseen and certainly harsh consequence of the result this language in Rule 9(j) requires us to reach. …

… The intent of Rule 9(j) is to prevent the filing of entirely frivolous medical malpractice claims. … This intent is plainly accomplished by the act of having a would-be plaintiff’s relevant medical care and records reviewed by a medical expert prior to the filing of a medical malpractice action. The rule’s further requirement that the complaint must specifically assert that this act has occurred serves to put a defendant on notice of the plaintiff’s compliance therewith.

Steelman goes on to note that the plaintiff in this case did have her records examined by a medical expert before filing suit, and only her lawyer’s errors led to the courts being forced to toss the case.

Among other opinions released this morning:

  • A unanimous three-judge panel affirmed the N.C. Property Tax Commission’s ruling against a Forsyth County church that attempted to claim a tax exemption in 2012 for property that did not yet have a completed church building.
  • A split 2-1 Appeals Court panel reversed an Anson County trial court and ruled that the Lilesville police chief violated a driver’s Fourth Amendment rights in 2012 when, with no suspicion of criminal activity, he took the driver’s license back to the police car to check its validity and search for outstanding warrants. The reversal means that the trial court must vacate the driver’s guilty plea in connection with the charges that stemmed from the police chief’s unconstitutional action.
  • In an unpublished opinion with limited precedential value, a unanimous three-judge panel affirmed a trial court’s ruling against a former Albemarle police officer who contended he was fired after revealing a fellow officer’s transgressions.