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A tort-reform measure designed to weed out frivolous medical malpractice claims is unconstitutional, the North Carolina Court of Appeals declared on Oct. 2. Anderson v. Assimos, No. COA00-587. The provision, state civil procedure rule 9(j), requires malpractice complainants to attest that a medical expert has reviewed and found merit in their claims. Many other states have adopted similar measures. In a suit filed in 1999, Margaret Wrenn Anderson alleged that several doctors failed to give her adequate warning that the antibiotic Gentamicin could cause permanent damage to her inner ear. Her attorney, Mary K. Nicholson of Greensboro, N.C., said that her client was too poor to pay a medical expert to review her claim, resulting in the dismissal of her suit. Writing for the majority in a 2-1 decision, Judge K. Edward Greene said that the state Legislature-enacted rule violates the state constitutional right of access to the courts because, even if an indigent plaintiff is able to retain an expert, the rule “places in the hands of that expert the right to decide if the injured party may proceed into court with her claim.” Greene added that the rule ran afoul of state and federal equal protection laws, too. Because a fundamental right was at issue, he said, a “strict scrutiny” analysis was required. The rule’s higher threshold for medical malpractice claims failed to withstand that analysis. “There is nothing in this record to support the claim that frivolous lawsuits were a problem,” the judge said. Even if such a problem did exist, the Legislature could have addressed it with a less restrictive measure, such as a medical review board that could counsel against, but not prohibit, the filing of frivolous claims, he said. Professor Jeffrey Parness of the Northern Illinois University College of Law, whose 1997 survey of similar measures revealed that most have been upheld in state court, doubts that the North Carolina Supreme Court will agree with Greene’s reasoning. Echoing the dissent by Judge Hugh B. Campbell Sr., Parness noted that Greene never identified what fundamental right was at stake here and that, because of the procedural posture of the case, the court never took evidence on the rule’s constitutionality. Some courts, such as the Oregon Supreme Court, have concluded that certain common-law tort claims in existence at the time of statehood are fundamental and, therefore, cannot be curtailed by a state legislature; but Greene foreclosed that line of argument when he conceded that that was not the accepted view in North Carolina, Parness said. Parness also pointed to the fact that the rule gives litigants the opportunity to petition for an additional 120 days to find an expert to review the claim. With that in mind, Parness said, it would be difficult to argue that the rule hands experts the keys to the courthouse door. Lawyer-surgeon Donald J. Palmissano, the secretary-treasurer of the American Medical Association, said there is abundant evidence that frivolous malpractice claims are a problem, citing outcome studies showing that more than half of malpractice claims end with no payout to the plaintiff.

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