The importance of a qualified expert witness in a medical malpractice claim cannot be understated. Without it, the case will fall apart, and the claim will never make it to the trial phase.
This is not something a victim of medical malpractice should have to worry much about, so long as he or she has hired an experienced injury lawyer. Seemingly minor technical mistakes have the potential to cause an entire case to be dismissed, which is why it’s imperative for plaintiffs to choose their legal team carefully.
An example of how things can go wrong was recently seen in the case of Ratledge v. Purdue before the North Carolina Court of Appeals. This was a case in which a college baseball player reportedly suffered permanent nerve damage in his arm as a result of a surgeon’s error, yet has forever lost the opportunity to seek compensation for this mistake due to a legal oversight regarding the expert witness.
According to court records, plaintiff was a baseball player at East Carolina University. He visited defendant doctor in 2008 for treatment regarding pain in his left hand. The physician determined plaintiff suffered a fractured hamate hook, which needed surgery in order to repair it.
Two weeks later, the doctor severed plaintiff’s ulnar nerve during surgery. However, there is no indication doctor informed patient of this fact, and patient continued to seek treatment, complaining of pain and difficulty moving parts of his hand. Doctor informed him the pain could take nine to 12 months to resolve.
Plaintiff sought a second opinion, and it was at that time, another surgeon determined plaintiff’s nerve had been severed during the previous surgery. He attempted to correct it via multiple surgeries, but those efforts were unsuccessful.
Plaintiff hired an attorney, and the medical records were forwarded to a company that performs reviews of medical malpractice claims and gives referrals to expert witnesses. The claim was reviewed by a doctor. The company provided the legal team with a “peer review by a state-licensed, board-certified orthopedic surgeon,” the same position as defendant. That review purported to be the viewpoint of the reviewing doctor, and based on this review, plaintiff filed his medical malpractice claim.
The problem was plaintiff failed to file verified interrogatories as required per Rule 9(j). The pertinent part of this rule holds that certification is required at the time a medical malpractice complaint is filed, and that certification requires an expert witness who asserts a willingness to testify, as well as a clearly-stated assertion that defendant breached the applicable standard of care.
Plaintiff failed to abide by this request because although the physician’s report was attached, it was missing these two elements. Plaintiff voluntarily dismissed his complaint without prejudice, meaning he was free to refile. However, he only had 120 days to do so, considering the statute of limitations had already passed and extensions in this regard are limited. Although the Rule(j) requirement was corrected, the court granted summary judgment because the filing was untimely.
On appeal, plaintiff argued trial court erred. However, the appellate court noted a defective original complaint can’t be rectified by a dismissal followed by a new complaint if that second complaint is filed outside the statute of limitations. (McKoy v. Beasley, 2011).
Because plaintiff’s original filing was defective, the second complaint filed outside the statute of limitations could not survive summary judgment favoring defense.
Our Charlotte medical malpractice lawyers understand the vast and specific requirements necessary to succeed in these types of complex cases. Only trust your case to a team with experience.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Ratledge v. Purdue, Feb. 17, 2015, North Carolina Court of Appeals
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