Blatant Ambiguity -- More Questions Than Answers

What Should A Lawyer Do To Meet The New Rule 9(j) Medical Records Review and Certification Requirement?

 Whatever the policy reasons for or against the medical malpractice tort reforms that became effective on October 1, 2011, the changes will inevitably cause legal malpractice issues for many of our insured lawyers.  In particular, the new Rule 9(j) states “the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed” by the 9(j) expert.  Although the amended Rule 9(j) appears fairly simple on its face, it raises numerous issues from a legal malpractice perspective regarding a lawyer’s own standard of care.  (See article "The Hippocratic "Oops" for more information regarding Rule 9(j).) For instance, the following questions are left unanswered by the new Rule 9(j):

1. What must a lawyer do to make a “reasonable inquiry” seeking medical records?  Are costs, time, and complexity of the medical care factors to be considered?  Is “inquiry” something more akin to an “investigation” or a “request?”
2. What does it mean for a medical record to be “available?”  What if a provider is properly asked for records but does not timely provide them to the lawyer in time for the Rule 9(j) review?   Is a medical record available just because it exists somewhere, or is it only available if it is in the lawyer’s actual possession after reasonable inquiry?
3.  What does “pertaining to the alleged negligence” mean?  Is it only the specific records of the medical provider’s treatment that is the subject of the medical malpractice lawsuit?  Or must the expert review medical records for unrelated or pre-existing conditions of the plaintiff if such records might possibly be relevant to their opinion.   Who makes that determination – the plaintiff or defense lawyer, the Rule 9(j) expert, the defense expert, or the trial judge? 
4. Does the expert have to actually see the records, or can they be read to him over the telephone by the plaintiff’s attorney?
5.  Must the plaintiff’s lawyer sit with the Rule 9(j) expert and make sure he actually reviews the records he is provided, or may the lawyer rely on the expert’s word that all records were reviewed?  If the expert later testifies that he did not review all the available records, is that the lawyer’s fault?
6.  What if the expert did a proper and timely review under the amended rule, but the certification does not specifically state that the expert reviewed the records?  Is dismissal mandatory? Can the certification be amended effectively?
7.  What if the Rule 9(j) expert testifies during his subsequent deposition that a particular pertinent record shown to him by the defense attorney was not provided to the expert for review?  Does the Rule still require dismissal?  Even for a single record?  What if the expert says that record would not have changed his original opinion?
8.  What is the appellate standard of review for each of these issues?

 While Rule 9(j) issues have always been a minefield for lawyers, Lawyers Mutual anticipates that the unanswered questions above will generate a great deal of new consternation, heartache, and inevitably, legal malpractice claims in the coming years.  As the courts struggle with these questions, Lawyers Mutual will be keeping a close eye on developments and will provide future practice pointers to our insureds through our blog, newsletter, and malpractice alerts.  If you have any suggestions or concerns you think will help us to help our insureds, please call us.

 Warren Savage joined Lawyers Mutual as claims counsel in 2005. He focuses on litigation, criminal defense, appellate advocacy, and professional responsibility in his work with Lawyers Mutual. A former partner with the law firm of Bailey & Dixon in Raleigh, Warren graduated from the University of Virginia and earned a Master of Arts in Teaching at the University of North Carolina at Chapel Hill before graduating magna cum laude from Campbell University School of Law. He spent several years as a high school English teacher.  Contact Warren at 800.662.8843 or wsavage@lawyersmutualnc.com.