In a 2016 nursing home negligence case, the plaintiff appealed from a dismissal of claims arising from her mother’s death. The case arose when the mother died in a nursing facility after suffering a fall. Her sister wouldn’t authorize treatment for the injuries from the fall. Her condition worsened, and eventually she died. Her daughter brought a nursing home negligence and wrongful death lawsuit.
She didn’t attach a Rule 9(j) certification to her nursing home negligence complaint. The defendants asked the trial court to dismiss the plaintiff’s lawsuit. The court dismissed the plaintiff’s claims for failing to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure, which applies to medical malpractice lawsuits, determining that all of the claims constituted medical malpractice, and therefore, the doctrine of res ipsa loquitur did not apply.
On appeal, the plaintiff argued that Rule 9(j) didn’t apply because she wasn’t suing for medical malpractice. The appellate court found that some of the claims were for medical malpractice, while others weren’t, and they arose out of the defendants’ actions after the mother’s death. The 11 claims in the complaint were labeled as wrongful death, medical negligence, negligence, loss of sepulcher, contractual breach, fiduciary duty breach, bad faith, elder abuse, emotional distress of the decedent’s survivors, pain and suffering, and conspiracy. The appellate court determined that some of these claims had to do with the conduct of the defendants before the mother died, and others were related to actions taken after the mother’s death.
The claims arising from before the mother’s death had to do with the defendants’ failure to give the mother adequate medical care after the fall and provision of treatment without informed consent. The appellate court found that these claims fell within Rule 9(j). Rule 9(j) requires medical malpractice complaints to be dismissed unless they specifically assert someone reasonably expected to serve as an expert witness has reviewed the medical care and all of the medical records related to the negligence that are available to the plaintiff after a reasonable inquiry. That expert must be willing to testify that the medical care provided to a claimant didn’t meet the relevant standard of care under N.C. Gen.Stat. § 1A-1, Rule 9(j). The purpose of this requirement is to weed out frivolous malpractice claims, and if a plaintiff doesn’t comply with the requirement, the complaint must be dismissed.
The appellate court found that each defendant met the definition of health care provider under the statute. The plaintiff hadn’t set forth facts that suggested the doctrine of res ipsa loquitur (which means “the thing speaks for itself”) applied.
However, the plaintiff also claimed damages based on how the defendants handled her mother’s dead body and one of the defendants’ breach of contract in failing to provide specific bereavement services as required by contract. The appellate court determined that these two post-death claims didn’t have to do with providing medical care. It determined that the trial court had made a mistake in dismissing those two claims, since no Rule 9(j) certification was required for them.
If you suffered harm due to nursing home negligence, the experienced attorneys at Maurer Law may be able to help you recover compensation. Contact us at 888-258-1087 or via our online form.
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