Paper published in the Campbell Law Review regarding Rule 702 9(j) requirements for qualified expert witnesses in North Carolina civil cases

1. Deborah M. Welsh, MPA, NCCP
August 13, 2008
Pursing medical negligence cases in North Carolina:
Qualifying the Expert Witness
In many states, an attorney who wishes to file a medical negligence action may be
required by statute to certify to the court that the case has merit. Generally, the attorney
must show that an appropriate medical expert has reviewed and verified the legitimacy of
the claims being made against a health care professional or facility. In North Carolina, the
attorney certifies in the complaint that a qualified expert has been consulted and agrees
that the plaintiff’s claim has merit. The question that arises frequently in these cases,
however, is whether or not that particular expert is “qualified” to testify to that opinion.
Rule 702
North Carolina adopted Federal Rule of Evidence 702 which governs the
qualifications and admissibility of experts. For actions filed on or after January 1, 1996,
an expert witness must qualify under Rule 702(a) as follows:
“(a) If scientific, technical or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may testify thereto in the
form of an opinion.”
When the claim is for medical negligence, parts (b) through (h) of the Rule require
the expert to possess the following additional qualifications:
1. Must be a licensed health care provider in this State or another state;
2. If the alleged defendant is a specialist, the expert must specialize in the
same or similar specialty and have prior experience treating similar
patients; or must practice in a similar specialty, members of which render
the same kind of care that is the subject of this action; and
3. During the year immediately preceding the date of the alleged negligence,
the expert witness must have devoted a majority of his or her professional
time to either (a) the active clinical practice of the same health profession
as the defendant, or (b) the instruction of students in an accredited health
professional school or accredited residency or clinical research program in
the same health profession in which the defendant practiced.
N.C. Rule of Civil Procedure 9(j)
North Carolina’s Rule of Civil Procedure 9(j) is the mechanism by which Rule 702 is
applied in a medical negligence action. It requires the plaintiff to certify in the complaint
that the medical negligence alleged has been “reviewed by a person who is reasonably
expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who
is willing to testify that the medical care did not comply with the applicable standard of
care.” (N.C. General Statute §1A-1.)
Further, the statute states that a complaint alleging medical negligence “shall be
dismissed unless it asserts that a health care provider meeting the qualifications
described in Rule 702 is willing to testify that the medical care did not meet the
applicable standard of care, or it asserts that facts exist establishing negligence under

2. Deborah M. Welsh, MPA, NCCP
August 13, 2008
the doctrine of res ipsa loquitur.” N.C. Gen. Stat. § 1A-1, Rules of Civ. Pro., Rule 9(j)
(Supp. 1997).
While most plaintiffs’ attorneys who regularly bring medical negligence actions will
already have competent experts in place before filing suit, problems sometimes arise once
those experts are made available for deposition by the defense. Since the point of
contention is whether or not plaintiff’s experts can testify that they are familiar with the
standard of care, the deposition will likely be the first place defense counsel will seek to
make sure that the expert is qualified to testify to that standard in North Carolina. Since
the viability of the case depends upon the testimony of a qualified expert, Plaintiff’s
expert(s) will most likely be challenged again at trial.
Standard of Health Care
North Carolina General Statute §90-21.12 (1990) is the section which sets out the
standard of care to be used by the trier of fact in assessing whether or not medical
negligence has occurred. The section states as follows:
“In any action for damages for personal injury or death arising out of the
furnishing or the failure to furnish professional services in the performance of medical,
dental or other health care, the defendant shall not be liable for the payment of damages
unless the trier of the facts is satisfied by the greater weight of the evidence that the care
of such health care provider was not in accordance with the standards of practice among
members of the same health care profession with similar training and experience situated
in the same or similar communities at the time of the alleged act giving rise to the cause
of action.”
Medical malpractice claimants must prove a breach of the standard of care by
expert testimony, unless the negligence is obvious to a layman. Lowery v. Newton, 52
N.C. App. 234, 278 S.E.2d 566, cert. denied, 304 N.C. 195, 291 S.E.2d 148) (1981);
Beaver v. Hancock, 72 N.C. App. 306, 324 S.E.2d 294 (1985). According to the statute,
the standard of care to which expert testimony and other evidence must refer is the
standard of practice in the same or similar community. There is no question that the
burden of establishing the standard of care and the breach of that standard by the
defendant belongs to the plaintiff. There appears to be a lack of agreement, however, as
to what the standard of care should be in the venue where the negligence took place and
the suitability of plaintiff’s expert to testify regarding that standard.
Historically, the standard of care rule was known as the locality rule. The locality
rule existed before medical training was standardized and served to bridge the gap
between university-educated medical treaters and those who had been otherwise trained
in local areas. It was argued that the compentence of a rural physician who practiced in
an area devoid of high-tech hospitals and medical equipment could not be fairly
compared with that of a highly educated physician practicing in a modern, fully-equipped
medical facility. However, those inequities of skill and education are less likely to be
found today, with the majority of physicians taking national examinations and

3. Deborah M. Welsh, MPA, NCCP
August 13, 2008
participating in national residency programs in nationally accredited hospitals. Further,
many argue that there are few communities without the benefit of access to adequate
medical facilities and care.
Despite the evolvement of national education and experience requirements for
medical providers, some continue to argue in North Carolina that the general, or national,
standard of care should not be the standard used by experts when reviewing cases
involving allegations of medical negligence. They argue that practice standards are not
adequately defined by the scientific community. Others argue that medicine is a science-
based discipline and that contemporary standards of practice are approved, published and
accepted by the medical profession at large. In fact, many states have abolished the
locality rule, arguing that there is no longer a place for a rule that attempts to justify
substandard medical care based upon some local custom. In North Carolina, however,
there remains the debate that the locality rule should remain in force as long as it can be
argued that there are still problems with rural communities having access to adequate
care.
However, having access to care and the competence of a particular medical
professional are not the same problems. For example, a rural physician can be nationally
trained, but be practicing in a community without the same medical facilities or
equipment available found in an urban setting. Using the logic of the locality rule, it
would not be fair to expect the rural physician to perform an emergency surgery, for
example, without adequate facilities at his/her disposal. However, it would not be
illogical to expect the physician to diagnose the need for the emergency surgery and to
arrange for immediate transport of the patient to an appropriate facility. This is where the
controversy lies. Today, the medical expert witness is expected to establish for the court a
standard for medical care that is general to all medical providers and then give an opinion
as to whether or not a particular defendant’s conduct violated this standard specifically as
to the plaintiff’s care.
Since most medical professionals are reluctant to testify regarding the conduct of
their contemporaries, plaintiff’s counsel will often have to look outside of the community
or state to find an expert. Again, in order to qualify as an expert in the medical negligence
case, the provider must be able to testify that they are familiar with the standard of care in
the locality where the medical negligence took place. Therefore, an expert from Stanford
University Hospital, for example, would testify that he/she is from Stanford, that he/she is
familiar with the standard of care at Stanford University Hospital, that he/she is familiar
with the standard of care in Washington, North Carolina, and that those standards are the
same. If there is a question regarding a national standard of care, the expert must be able
to testify that he/she is familiar with that national standard, familiar with the standard in
Washington, North Carolina, and then testify that the standards are the same. Plaintiff’s
counsel and the expert can then bolster this opinion with peer-reviewed medical
literature, policies and procedures from the medical facility itself, opinions from other
practitioners in the community, and standards put forth by the treater’s own profession
(such as the Clinical Policies set forth by the American College of Emergency
Physicians).

4. Deborah M. Welsh, MPA, NCCP
August 13, 2008
Qualification of potential medical expert witnesses continues to be contentious in
North Carolina. Currently there is at least one case at the appellate level in which the
parties are asking for clarification of the elements needed to qualify experts in medical
negligence matters. Since the life of the case is dependent upon plaintiff having obtained
an opinion by a qualified expert, the question is an important one.