Bringing A Legal Malpractice Action About A Botched Med. Mal. Case? Better Get Your 9j Certification...

On Friday, the NC SCT filed Formyduval v. Britt, with Justice Timmons-Goodson not participating and the other Justices evenly divided. At issue in Formyduval was whether Civil Procedure Rule 9(j), which requires certification by an expert of complaints alleging medical malpractice prior to the complaint's being filed, also applies to legal malpractice claims where the underlying, allegedly mishandled, claim was a medical malpractice claim.

The COA majority held 9(j)'s expert certification requirement did not apply to legal malpractice claims, that the plain language of Rule 9(j) spoke only to medical malpractice actions. The COA dissent, authored by Judge Bryant, would have upheld the trial court's dismissal of the legal malpractice action because, to succeed on a legal malpractice claim, the plaintiff needs to prove he or she would have won in the underlying medical malpractice case had it not been for the alleged legal malpractice.

The evenly divided Supreme Court opinion leaves the COA decision undisturbed but without precedential value . . . and leaves smart legal malpractice plaintiffs' counsel with the knowledge that they had better secure 9(j) certification for botched med. mal. cases.