04 NCAC 10B .0202          MEDICAL MALPRACTICE CLAIMS BY PRISON INMATES

(a)  In medical malpractice cases filed by or on behalf of prison inmates where the plaintiff is alleging that a health care provider as defined in G.S. 90-21.11 failed to comply with the applicable standard of care under G.S. 90-21.12 and the defendant has filed a Motion to Dismiss the claim, all discovery is stayed until the following occur:

(1)           A recorded hearing in which no evidence is taken is held before a Deputy Commissioner or a Special Deputy Commissioner for the purpose of determining:

(A)          whether a claim for medical malpractice has been stated;

(B)          whether expert testimony is necessary for the plaintiff to prevail; and

(C)          if expert testimony is deemed necessary, whether the plaintiff will be able to produce such testimony on the applicable standard of care.

(2)           Upon receipt of a Motion to Dismiss and Request for Hearing from the defendant, the Commission issues an order setting the motion on a hearing docket and the case is assigned to a Deputy Commissioner or a Special Deputy Commissioner.

(b)  If the defendant's Motion to Dismiss is granted, an appeal lies to the Full Commission.

(c)  If defendant's Motion to Dismiss is denied, the case shall proceed as any other tort claims case. Defendant shall produce medical records to plaintiff within 45 days of the Order of the Commission denying defendant's Motion to Dismiss. Plaintiff shall then have 120 days to comply with Rule 9(j) of the North Carolina Rules of Civil Procedure.

 

History Note:        Authority G.S. 143-300;

Eff. January 1, 1989;

Recodified from 04 NCAC 10B .0206 Eff. April 17, 2000;

Amended Eff. July 1, 2014; May 1, 2000.