GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1999

S	1 

SENATE BILL 1012

Short Title:  Medical Malpractice Pleadings.	(Public)

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Sponsors: Senator Cooper.

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Referred to:  Judiciary I.

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April 15, 1999

A BILL TO BE ENTITLED
AN ACT TO ALLOW A PRESIDING JUDGE IN A COUNTY WITH PROPER VENUE TO EXTEND THE STATUTE OF LIMITATIONS IN A MEDICAL MALPRACTICE ACTION THAT WAS IMPROPERLY PLEADED UNDER RULE 9 OF THE RULES OF CIVIL PROCEDURE AND TO PROVIDE THAT AN INVOLUNTARY DISMISSAL FOR FAILURE TO COMPLY WITH RULE 9 IS NOT AN ADJUDICATION ON THE MERITS IN MEDICAL MALPRACTICE ACTIONS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 1A-1, Rule 9(j) reads as rewritten:
"(j)	Medical malpractice. – Any complaint alleging medical malpractice by a health care provider as defined in G.S. 90-21.11 in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:
(1)	The pleading specifically asserts that the medical care 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;
(2)	The pleading specifically asserts that the medical care has been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or
(3)	The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.
Upon motion by the complainant prior to the expiration of the applicable statute of limitations, a resident or presiding judge of the superior court of a county in which venue for the cause of action is proper may allow a motion to extend the statute of limitations for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension.  The plaintiff shall provide, at the request of the defendant, proof of compliance with this subsection through up to ten written interrogatories, the answers to which shall be verified by the expert required under this subsection.  These interrogatories do not count against the interrogatory limit under Rule 33."
Section 2. G.S. 1A-1, Rule 41(b) reads as rewritten:
"(b)	Involuntary dismissal; effect thereof. – For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim therein against him. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court  renders judgment on the merits against the plaintiff, the court shall  make findings as provided in Rule 52(a). Unless the court in its order for dismissal otherwise specifies, a dismissal under this section and  any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction, for improper venue, for failure to join a necessary party, or for failure to comply with Rule 9(j), operates as an adjudication upon the merits. If the court specifies that the dismissal of an action commenced within the time prescribed therefor, or any claim therein, is without prejudice, it may also specify in its order that a new action based on the same claim may be commenced within one year or less after such dismissal."
Section 3.  This act becomes effective October 1, 1999, and applies to judgments entered on or after that date.