29 Jul 2021 10:32 AM | Jennifer Edwards (Administrator)

By Lisa Frye Garrison, Garrison Law Group, PLLC

On June 18, 2021, Governor Cooper signed into law Session Law 2021-47 (Senate Bill 255), which makes two changes in the procedures for medical malpractice cases in North Carolina.  The first involves the handling of final jury instructions.  The second involves designating a specific superior court judge to preside over all proceedings in each medical malpractice case.  

First, Rule 51 of the NC Rules of Civil Procedure has a new subsection “(d),” which applies to “[f]inal instructions to the jury. – [i]n civil cases subject to G.S. 90-21.11(2) [the statute that defines a “medical malpractice action”].” In such cases, “the court shall reduce the oral instructions given to the jury to writing. Upon the jury retiring for deliberation, the court is encouraged to and may provide the jury a written copy of the oral instructions for the jury to take into the jury room during deliberation.” (Emphasis added) In short, judges in these future medical malpractice trials are not required to give the jury a written copy of their final instructions, but they are “encouraged to” do so, and are always required to reduce their final instructions to writing. Pursuant to subsection “(1.c)” of SL 2021-47, this new Rule 51(d) only applies to “actions filed on or after” October 1, 2021.

Second, North Carolina General Statute § 7A-47.3—which addresses superior court judges’ rotations, assignments, and sessions—has been amended to add a new subsection "(e)." This new section states, “The senior resident superior court judge, in consultation with the parties to the case, shall designate a specific resident judge or a specific judge assigned to hold court in the district to preside over all proceedings in a case subject G.S. 90-21.11(2)..” (Emphasis added.) Pursuant to subsection “(1.c)” of SL 2021-47, this new subsection “(e)” is effective October 1, 2021. It should apply to all pending medical malpractice cases at that time, as well as all cases filed thereafter.

Section (e) does not indicate that the Senior Resident must select one judge who will hear all medical malpractices cases filed in a given district; the phrase “in a case” suggests that a judge is designated for each individual case. That said, the judge designated must “preside over all proceedings in” that case. Presumably, that will include all dispositive motions, discovery motions (including the process of entering a discovery scheduling order), the trial, pre-trial and post-trial motions, and any settlements requiring court approval.

Notably, the Senior Resident has two options, after consulting with the parties: (1) designating a “resident judge” or (2) designating “a specific judge assigned to hold court in the district.” One open question is whether non-resident judges designated in a given case may only hold hearings in their designated cases while they are “assigned to hold court in the district.” It is possible that the phrase “in the district” only applies to the “designation” period—when the judge is selected by the Senior Resident—and not to the entire life of the case. If so, non-resident, designated judges for particular cases might be able to hold hearings in their assigned cases on occasions when they are not actually sitting in the district, as Rule 2.1 appointed judges often do. It will be interesting to see how judges and parties—particularly parties who do not want to travel to a non-resident judge’s district for hearings—interpret the “in the district” language and its implications for these jurisdictional issues.

Having specific judges assigned to handle each future medical malpractice case will represent a significant change for counsel, parties, and the court. For example, having only one judge who can hear motions in each case may slow down the parties’ ability to calendar motions for hearings that require prompt attention, depending on how the “in the district” language discussed above is interpreted. On other hand, this new designation process may lead to efficiencies and continuity within each case, as the judge assigned will become quite familiar with the parties and the issues involved, as well as the specialized rules applicable to this area of law. This new designation process may also provide opportunities for judges with interests and expertise in medical malpractice cases to handle them more frequently, if Senior Residents are inclined to focus the assignments of these cases accordingly.

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