N.C. court derails law meant to curb frivolous malpractice suits

State appeals court says requiring prior medical review puts an unfair burden on potential malpractice plaintiffs. Similar laws in other states still intact.

By Tanya Albert, AMNews staff. Nov. 5, 2001.

Patients suing North Carolina physicians for medical malpractice don't need to have an expert witness lined up before they can file a lawsuit, at least for now.

The North Carolina Court of Appeals in October struck down a 1995 state law requiring potential medical malpractice plaintiffs to have a qualified physician review the medical care before a lawsuit was filed. The reviewer had to be someone who was expected to qualify as an expert witness under North Carolina law. He or she also had to be willing to testify that there was a deviation from the accepted standard of care.

Physicians and the North Carolina Medical Society said the 2-1 decision would open the floodgates for lawsuits without merit -- exactly what the law was designed to guard against.

"As physicians, we want patients legitimately injured to have redress," said Joseph Jenkins, MD, a physician-lawyer who now runs a consulting business in North Carolina. "I don't believe there is evidence that suggests that this rule has denied access to plaintiffs."

The law was working, according to the NCMS. "It has been the most effective device for limiting frivolous malpractice claims," said Stephen Keene, NCMS general counsel. "You have to have an expert anyway. This requires one earlier in the process. It does not burden legitimate malpractice cases."

But trial lawyers said the ruling removes an unfair hurdle that no other type of plaintiff in North Carolina faced.

They said the law sometimes created a cost burden up-front that prohibited people from filing suits and that it was sometimes difficult to find experts to testify before they had all of the evidence. Some even questioned whether there was a problem with frivolous lawsuits in the first place. [...]