Fortunately, patients that are injured by the mistakes of medical professionals have avenues to seek compensation for their injuries. The following blog is a general outline of Medical Malpractice Tort Claims in North Carolina. Please be aware that this area of the law is highly technical, detail-oriented and frequently requires the use of medical experts to pursue recourse for injuries. We strongly recommend that you seek the advice and counsel of a licensed Matthews Medical Malpractice Lawyer in regards to any potential Medical Malpractice claim that you may have at the earliest opportunity possible. This is to ensure that you file a Medical Malpractice Lawsuit (if appropriate for your case) within the applicable time period provided by the applicable Statute of Limitation for your case. This blog is not to be construed as legal advice.
N.C.G.S. § 90-21.11(2) defines a medical malpractice action as:
This blog focuses on N.C.G.S. § 90-21.11(2)(a)- claims for personal injuries or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider. We will discuss option B in a later blog.
Generally, in the pursuit of a medical malpractice claim, the injured patient must prove:
For example, in Lewis v. Setty, 130 N.C. App. 606, 503 S.E. 2d 673 (1998), the plaintiff alleged that the physician was negligent in failing to lower the examination table prior to transferring the plaintiff to his wheelchair. The North Carolina Court of Appeals held that this case was not a medical malpractice case, and thus, compliance with Rule 9(j) was not required because the cause of action did not arise out of the “furnishing of professional services” and therefore the case did not fit within the statutory definition of a medical malpractice action.
Establishing the standard of care owed by a health care provider in a medical malpractice action generally requires “highly specialized knowledge” not within the common knowledge of a layperson. Therefore, expert testimony is often required in medical malpractice actions. Mazza v. Huffaker, 61 N.C. App. 170, 175, 300 S.E. 2d 833, 837, disc. review denied, 309 N.C. 192, 305 S.E. 2d 734 (1983). Further, the standard of care must be established by other practitioners in the particular field of practice of the defendant health care provider or by other expert witnesses equally familiar and competent to testify as to that limited field of practice. See N.C.G.S. § 8C-1, Rule 702(b), (d); Heatherly v. Industrial Health Council, 130 N.C. App. 616, 504 S.E. 2d, 102, (1998). An example of an issue that may have to be established by a particular standard of care that a plaintiff must prove in a medical malpractice action is whether a doctor should administer medications such as antibiotics prior to performing a particular medical procedure.
N.C.G.S. § 90-21.12 provides in pertinent part: The defendant shall not be liable unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action. As previously mentioned in the hypothetical above, an example of an issue that can become a breach of the standard of care that a plaintiff must prove in a medical malpractice action is that the doctor’s failure to administer medications such as antibiotics prior to performing a particular medical procedure was in fact a breach of the doctor’s standard of care owed to the patient.
Proximate Causation is generally understood in North Carolina Tort Law to mean an act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred. Proximate cause is the foreseeable cause of injuries that occurs without intervention of any independent or unforeseeable intervening cause or force. Proximate cause is also known as the legal cause. Proximate Cause can be difficult for medical experts to prove, particularly in cases involving infections arising in patients after seeking medical treatment, because infections happen often, even in the absence of negligence. It is difficult to prove definitively, that an infection was caused by a medical provider’s breach of the standard duty of care owed to the patient when there can be copious explanations for the cause of the patient’s infection.
Like any standard negligence claim in North Carolina, plaintiffs are required to prove actual damages when suing for medical malpractice. The general damages that plaintiffs may claim in medical malpractice claims are summarized below.
It is important to understand the different types of damages that a plaintiff may recover in a medical malpractice action. Some of these categories are capped not to exceed certain dollar amounts by statute.
These damages include but are not limited to medical bills (past and future) and lost earnings (past and future). Generally, there is no cap on economic damages in Medical Malpractice claims in North Carolina.
These damages include but are not limited to damages for pain and suffering and emotional distress. N.C.G.S. § 90-21.19(a) provides that generally, in any medical malpractice action in which the plaintiff is entitled to an award of noneconomic damages, the total amount of noneconomic damages for which judgment is entered against all defendants shall not exceed $500,000.00. (This amount is to be reviewed every three years in accordance with statutory requirements to account for inflation. The next review is to occur in 2020). N.C.G.S. § 90-21.19(b) provides that there shall be no limit on the amount of noneconomic damages entered against a defendant if the trier of fact finds both:
Punitive damages may be awarded to a plaintiff for the purpose of punishing an especially culpable defendant. Unlike Economic and Non-Economic damages, Punitive damages are not measured by the plaintiff’s proven loss. Generally, they are calculated separately to account for the defendant’s bad conduct that exceeded mere negligence. However, like Non-Economic Damages, Punitive Damages are capped by statute. N.C.G.S. § 1D-25(b) provides that: Punitive damages awarded against a defendant shall not exceed three times the amount of compensatory damages (economic and non-economic) or $250,000.00, whichever is greater.
These requirements are quite hefty in North Carolina. N.C.G.S. § 1A-1, Rule 9(j) of the North Carolina Rules of Civil Procedure provide: Any complaint alleging medical malpractice by a health care provider as defined in N.C.G.S. § 90-21.11 in failing to comply with the applicable standard of care under N.C.G.S. § 90-21.12 shall be dismissed unless:
This is a large reason why we strongly encourage you to seek a licensed Matthews Medical Malpractice Lawyer to evaluate your case at the earliest chance possible after you or a loved one incurs injuries that you believe were caused by a medical professional. As the statute states, you will be required to have your medical records reviewed by a competent medical professional to determine if a cause of action exists for medical malpractice. This determination by the competent medical professional should be made in conjunction with a licensed Matthews Medical Malpractice Lawyer.
N.C.G.S. § 1A-1, Rule 9(k) provides: A demand for punitive damages shall be specifically stated, except for the amount, and the aggravating factor that supports the award of punitive damages shall be averred with particularity. The amount of damages shall be pled in accordance with Rule 8.
Generally, a medical malpractice action in North Carolina must be commenced within 3 years from the date of the negligent act. N.C.G.S. § 1-15(c). However, other scenarios arise that may extend the Statute of Limitations on your claim beyond 3 years from the date of the negligent act such as, an extension to 4 years is possible if the injury was not readily apparent at the time it occurred. Additionally, if the injury involves a foreign object left in a patient’s body, an action may be commenced within 10 years, provided that such action is commenced within 1 year after the foreign object’s existence is discovered. Black v. Littlejohn, 312 N.C. 626 (1985). Other Statutes of Limitation may apply to your claim.
As you can see, Medical Malpractice claims are a highly technical area of North Carolina Tort Law. Therefore, we strongly encourage you to seek the advice of a licensed Matthews Medical Malpractice Lawyer before you decide to pursue or not to pursue a claim for Medical Malpractice. To schedule a consultation today, contact Biazzo & Panchenko Law, PLLC. Due to the complex nature of Medical Malpractice Actions in North Carolina, your case will likely require further legal analysis beyond a consultation, which could require a nominal fee to complete. This blog is not to be construed as legal advice.
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