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Back September 11, 2019

Medical Malpractice in North Carolina

Medical Malpractice in North Carolina

The advancements in modern medicine have arguably been incredible. While modern medicine is far from perfect, the average life expectancy of our population has substantially risen in only decades, in large part due to innovations in knowledge, technology and treatment. These advancements have been cultivated through intense clinical research and experience by medical professionals over thousands of years. Like many Americans, we recognize the high value of medical professionals. But we’re also aware that they occasionally make mistakes. 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 North Carolina Personal Injury Attorney 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.

What is a Medical Malpractice Claim?

N.C.G.S. § 90-21.11(2) defines a medical malpractice action as: (a) A civil action for damages for personal injury 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; or (b) A civil action against a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes for damages for personal injury or death, when the civil action (i) alleges a breach of administrative or corporate duties to the patient, including, but not limited to, allegations of negligent credentialing or negligent monitoring and supervision and (ii) arises from the same facts or circumstances as a claim under sub-subdivision a. of this subdivision. 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.

Basic Elements of a Medical Malpractice Claim

Generally, in the pursuit of a medical malpractice claim, the injured patient must prove: (1) the applicable standard of care (for the procedure, diagnosis, treatment, etc. that medical professional owed to the patient); (2) a breach of the applicable standard of care by the defendant medical professional; (3) that the breach was the proximate cause (legally foreseeable cause) of the patient’s injuries; and (4) the nature and amount of the patient’s damages. Please be aware that some negligence claims asserted against health care providers are not considered to be medical malpractice claims. 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.

Element 1: The Applicable Standard of Care

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.

Element 2: Breach of the Standard of Care

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.

Element 3: Breach Was the Proximate Cause of Patient’s Injuries

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.

Element 4: Nature and Amount of Patient’s Damages

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.

Potential Damages: Economic, Non-Economic & Punitive

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.

Economic Damages

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.

Non-Economic Damages

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: (1) the plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death; and (2) the defendant’s acts or failures, which are the proximate cause of the plaintiff’s injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional or with malice.

Punitive Damages

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.

Requirements to File a Medical Malpractice Lawsuit

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: (1) The pleading specifically asserts that the medical care has been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the North Carolina Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care (In other words, Rule 9(j) requires certification of expert review in the pleading); (2) the pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or (3) The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur. In other words, your lawsuit will not proceed past its initial filing unless your pleading and pre-suit actions comply with Rule 9(j) of the North Carolina Rules of Civil Procedure. This is a large reason why we strongly encourage you to seek a licensed North Carolina Personal Injury Attorney 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 North Carolina Personal Injury Attorney.

Additional Filing Requirements When Seeking Punitive Damages

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.

Statute of Limitations

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.

Get a Proper Case Evaluation

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 North Carolina Personal Injury Attorney 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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