Medical Expert should be engaged in active clinical practice to give a valid testimony

Testimony of a medical expert would not be accepted by the courts unless the expert meets the necessary qualification that is prescribed by the rules (in this case Rule 9(j) of North Carolina Rule of Evidence 702). One such requirement is to ensure that the expert in question has been engaged for the majority part of the previous year in actual clinical practice preceding the alleged act of medical malpractice.

In this case (2015 U.S. App. LEXIS 4211) the plaintiff, Timothy Hines was a federal inmate in the New Hanover County Detention Center in North Carolina. He had undergone a kidney transplant and allegedly needed to be on regular anti-rejection medication to ensure that his body did not reject this transplant. Hines unfortunately had to resume his dialysis treatment soon.

He alleged that this could have been avoided had the defendants not been negligent in carrying out their responsibility. Hines brought cumulative claims against the defendants: the Medical Director of the Detention Center (Dr. James Pence), the Clinical Director (Brandi Brunette), Correct Care Solutions, LLC and two of its employees for allegedly having failed to ensure that he was regularly given the anti-rejection medicine. He complains that had the defendants made sure that he was on his prescribed medication he would not have had to resume the dialysis treatment.

He sought $3 million as compensatory damages and $3 million as punitive damages for this alleged breach of the accepted standard of care by the defendants.

To prove his case of medical malpractice the plaintiff brought in an expert to depose in his favor. And the defendants sought to exclude the testimony of the expert on the ground that the expert did not meet the requirements laid down in Rule 9(j) of the North Carolina Rule of Civil Procedure. Now, Rule 9(j) of the North Carolina Rule of Civil Procedure provided that an expert witness should meet the standards prescribed under Rule 702 of Rule of Evidence before he can be allowed to examine the medical care in question, evaluate the medical records pertaining to the case, and give his opinion regarding the standard of care in a court of law.

Now, the defendants argued that the Supreme Court of North Carolina had already clarified (in Moore v. Proper, 366 N.C. 25, 726 S.E.2d 812, 816 N.C. 2012) that the part in Rule 9(j) of the North Carolina Rule that referred to Rule 702 of the Rules of Evidence was in essence a reference to North Carolina Rule of Evidence 702, and not to the Federal Rule of Evidence 702.

Therefore according to the defendant, the expert in question needed to meet the condition laid down in North Carolina Rule of Evidence 702 which stated that an expert should have spent the majority of his time in the preceding the year of the alleged act, in active clinical practice and not in doing some supervisory work. Hines’ agreed that his expert witness had not treated enough patients personally and had in fact been involved mostly in the supervision of physicians, physicians’ assistants and nurse practitioners in the preceding year.

The District Court accepted the point raised by the defendant and rejected the testimony of the plaintiff’s expert and his case stating that the complaint did not meet the standard laid down in Rule 9(j).

Hines appealed to the United States Court Of Appeals for the Fourth Circuit from this decision and inter alia argued how clinical practice could include in its ambit supervisory roles as was engaged in by his expert. But the court rejected this contention of the plaintiff and held that previous decisions [ For my Duval v. Bunn, 138 N.C. App. 381, 530 S.E.2d 96, 103 (N.C. Ct. App. 2000); Barringer v. Forsyth Cnty. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 677 S.E.2d 465, 477 (N.C. Ct. App. 2009) ] had clarified that supervising others could not be regarded the same as being involved in “active clinical practice”.

The court explained that Rule 9(j) was specifically enacted by North Carolina General Assembly to ensure that a Court only entertained a medical malpractice petition after it had received the reviewed opinion of a competent medical professional on the standard of care that was exercised in the alleged malpractice case by the impugned medical professional. This was to ensure that medical professionals didn’t have to deal with defending themselves in frivolous medical malpractice claims.

Highlighting this objective of Rule 9(j) the Court of Appeals rejected the appeal and affirmed the District Court ruling.