There is no area of the law more difficult in today’s climate than Medical Negligence. This is particularly true in North Carolina. At the same time, I must say some of our most rewarding moments, personally and professionally, have come at the end of a successful outcome of a medical negligence case.
I used the word “difficult” above in describing these cases and it is accurate. In 1998, the North Carolina Administrative Office of the Courts (AOC) began gathering data on the filing of medical malpractice lawsuits along with some other particulars including the date it was resolved and whether it went to trial. Then, the North Carolina Academy of Trial Lawyers contacted county clerk offices on all of these cases that had gone to trial through the end of 2011.
- There was an average of 560 medical malpractice lawsuits per year filed from 1998 through 2010.
- During that same time, there was an average of 299,195 civil suits filed per year, indicating that medical malpractice suits account for approximately 0.24% of all civil cases.
- Of the cases filed during that time (’98-10) 92% had been resolved by January 1, 2011.
- Of the cases resolved 4% went to verdict, 96% were settled, dismissed or otherwise resolved.
Medical Negligence cases are unique for several reasons. One reason is that these cases involve a profession we turn to for help, not one we typically associate with causing harm. The medical profession is elevated in the eyes of many because they normally make us feel better when we are sick or hurt. We read and hear about medical professionals saving lives, rather than taking them.
Another factor that makes these cases unique is that the medical providers are powerful and control the information. When something goes wrong in the hospital or doctor’s office, the evidence of the mistake is in the records created by that hospital or doctor. A medical provider may simply leave the negligent act out of the “medical chart” and conclude that the outcome happened through uncontrollable events, not negligence. The American Medical Associate (AMA), Insurance Industry and Hospital lobbyist have a lot of power and have used that power to have laws drafted that benefit those industries, not the injured person. Additionally, the language of medicine is hard for those of us not trained in the medical field to understand. Therefore, we tend to believe what we are told even when we do not understand it. As you can imagine, a medical negligence case is always an uphill battle for the injured. This makes the fight and the victory very gratifying.
Our legislators decided in 2011 that the medical malpractice cases in North Carolina represented a “crisis” and drafted Senate Bill 33 which was ratified June 13, 2011. Governor Perdue vetoed this terrible law and her veto was overridden on July 25, 2011 at 5:48p.m. I have included a copy of this draconian piece of legislation at the end of this summary regarding medical malpractice.
Interestingly, the New England Journal of Medicine 11/25/10, Alberta Hospital Associates, Hospital Statistics found that there were 9.43 permanent injuries or death caused by a preventable medical mistake per every 1,000 hospital admissions in N.C. According to the N.C. Administrative Office of the Courts there are 0.000125 verdicts per 1,000 emergency room visits. So while hospital emergency room staff harm or kill 10 out of every 1,000 patients, they are not held accountable by our legal system. As unimaginable as that statistic is, it will now be even worse as North Carolina General Statute 90-21.12 (b) requires the injured person to prove the law by clear and convincing evidence rather than by the greater weight of the evidence. We have now put many medical providers above the law at the expense of the taxpayer.
Let us now talk about medical negligence and start with the basic, general elements.
To recover in a cause of action for medical negligence against a doctor, the plaintiff must prove:
- The existence of a duty to the plaintiff by the defendant doctor
- A breach of that duty by the defendant doctor
- An injury that is causally related to the breach of duty and
- Legally recognized damages (injuries).
1. DUTY - It is the physician – patient relationship which creates the duty the doctor owes his or her patient. The patient goes to that doctor because of their special knowledge and skill and the patient then relies on that doctor’s recommendations in diagnosing and treating the medical condition.
2. BREACH – The injured party in a medical malpractice case must show that the defendant doctor did not meet the appropriate standard of care. It is this failure to meet the appropriate standard which is the breach in the duty owed to the patient.
The North Carolina Jury Instructions address this issue the following way:
“Negligence refers to a person’s failure to follow a duty of conduct imposed by law. Every health care provider is under a duty
- [to use his best judgment in the treatment and care of his patient]
- [to use reasonable care and diligence in the application of his knowledge and skill to his patient’s care]
- [To provide health care 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 the health care is rendered].
A bad result by itself does not mean the doctor committed malpractice. A physician is not a guarantor of a good result, nor is the doctor required to use the highest degree of care possible.
In order to prove negligence, you must show: (1) the doctor/provider failed to use his or her best judgment in treating the patient; (2) failed to use reasonable care; or (3) failed to provide health care at the level of others of the same health care profession with similar training and experience who are in the same or similar communities at the time the event occurred.
Now you are probably telling yourself “what?!” That’s right. It is crazy? A health professional who has spent a lifetime treating and performing the very procedure in question may not qualify as an expert UNLESS that extremely qualified expert is familiar with that or some other similar communities at the time the event occurred. What may be a negligent (malpractice) event in Charlotte, North Carolina may not be in Hickory, North Carolina because the community standard may be different. The Good News is that not every state has made such an obviously stupid law. The bad news is North Carolina, in an effort to help shield doctors from being held responsible for their mistakes, throws common sense, logic and safety to the wind, and enacted such a law.
3. CAUSATION – Naturally any injury one claims in a medical negligence case must be the result of the provider’s breach of duty. Again, a bad result does not mean medical negligence occurred. The question is whether the problem complained of, (the pain, the scar, the damaged organ, etc.) must be related to (caused by) the negligent act and not simply be an unavoidable consequence. The North Carolina Pattern Jury Instructions address cause as follows:
The plaintiff not only has the burden of proving negligence, but also that such negligence was a proximate cause of the [injury] [damage].
Proximate cause is a cause which in a natural and continuous sequence produces a person’s [injury] [damage], and is a cause which a reasonable and prudent health care provider could have foreseen would probably produce such [injury] [damage] or some similar injurious result.
There may be more than one proximate cause of [an injury] [damage]. Therefore, the plaintiff need not prove that the defendant’s negligence was the sole proximate cause of the [injury] [damage]. The plaintiff must prove, by the greater weight of the evidence, only that the defendant’s negligence was a proximate cause.
4. DAMAGES – These are the by-product of the act. You must have suffered a recognized loss. The North Carolina Pattern Jury Instruction regarding damages reads as follows:
Actual damages are the fair compensation to be awarded to a person for any [past] [present] [future] injury [proximately caused by the negligence] of another.
In addition, in some cases the health care institutions may be found liable for the acts of its agents or their own corporate negligence. To recover in a cause of action for medical negligence against a health care institution, the plaintiff must prove:
To hold an institution liable for ACTS OF THE AGENTS of the institution, one must prove:
- An agency relationship between the medical professional and the institution; and
- The negligence of the employee or agent of the institution, while acting within the course and scope of their employment caused the damage complained of.
To hold an institution liable for ACTS OF THE INSTITUTION itself, the following can be a source of liability.
- Failure to use reasonable care to maintain a safe or adequate facility;
- Failure to select and retain competent staff; or
- Failure to adopt and implement adequate rules and procedures to ensure quality of care; or
- Failure to properly oversee all personnel who practice medicine in the facility.
Nursing liability is a combination of both the employee negligence and the application of the standard of care. The standard is often similar to that of the physician in that the nurse will be liable for professional negligence if it is shown that the nurse’s conduct was a departure from the accepted practice and that the departure was a proximate cause of the injury.
Now, you may be thinking, “I have all of the elements, so I must have a case.” Frequently we hear what sounds like a case and it is not. Some problems are a risk of the procedure and can occur without negligence. Often we hear about a case that meets all of the elements but the cost of pursuing the case and the risks involved outweigh the likely amount to be recovered.
These cases have become very expensive to pursue. You must retain the experts who will testify about the negligence before you file the lawsuit. In the days of common sense, you would file your lawsuit (complaint) and the other side would file an answer. Both sides would serve written questions to answer, request certain documents be produced and orally examine the parties. This phase, appropriately called discovery, would then help shape the case. Using the information gathered through discovery, experts would then be retained to address the issue. However, the North Carolina Rules of Civil Procedure require you to hire your standard of care expert before you file the lawsuit. More to the point, you must hire the person who says the doctor “screwed up” before the doctor gives you all the information that would help in determining whether he actually “screwed up” or not.
GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION LAW 2011-400
SENATE BILL 33
AN ACT TO REFORM THE LAWS RELATING TO MONEY JUDGMENT APPEAL BONDS, BIFURCATION OF TRIALS IN CIVIL CASES, AND MEDICAL LIABILITY.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 1-289 READS AS REWRITTEN:
§1-289. Undertaking to stay execution on money judgment.
(a) If the appeal is from a judgment directing the payment of money, it does not stay the execution of the judgment unless a written undertaking is executed on the part of the appellant, by one or more sureties, as set forth
in this section.
(b) In an action where the judgment directs the payment of money, the court shall specify the amount of the undertaking required to stay execution of the judgment pending appeal as provided in subsection (c) of this section. The undertaking shall be to the effect that if the judgment appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal, except as provided in subsection (b) of this section. Whenever it is satisfactorily made to appear to the court that since the execution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking, as above. In case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring it, the appeal may, on motion to the court, be dismissed with costs. Whenever it is necessary for a party to an action or proceeding to give a bond or an undertaking with surety or sureties, he may, in lieu thereof, deposit with the officer into court money to the amount of the bond or undertaking to be given.
The court in which the action of proceeding is pending may direct what disposition shall be made of such money pending the action or proceeding. In a case where, by this section, the money is to be deposited with an officer, a judge of the court, upon the application of either party, may, at any time before the deposit is made, order the money deposited in court instead of with the officer; and a deposit made pursuant to such order is of the same effect as if made with the officer. The perfecting of an appeal by giving the undertaking mentioned in this section stays proceedings in the court below upon the judgment appealed from; except when the sale of perishable property is directed, the court below may order the property to be sold and the proceeds thereof to be deposited or invested, to abide the judgment of the appellate court.
(c) The amount of the undertaking that shall be required by the court shall be an amount determined by the court after notice and hearing proper and reasonable for the security of the rights of the adverse party, considering relevant factors, including the following:
(1) The amount of the judgment.
(2) The amount of the limits of all applicable liability policies of the
appellant judgment debtor.
(3) The aggregate net worth of the appellant judgment debtor.
(d) If the appellee in a civil action brought under any legal theory obtains a judgment directing the payment or expenditure of money in the amount of twenty five million dollars ($25,000,000) or more, and the appellant seeks a stay of execution of the judgment within the period of time during which the appellant has the right to pursue appellate review, including discretionary review and certiorari, the amount of the undertaking that the appellant is required to execute to stay execution of the judgment during the entire period of the appeal shall be twenty five million dollars (25,000,000).
(e) If the appellee proves by a preponderance of the evidence that the appellant for whom the undertaking has been limited under subsection (d) of this section is, for the purpose of evading the judgment, (i) dissipating its assets, (ii) secreting its assets, or (iii) diverting its assets
Outside the jurisdiction of the courts of North Carolina or the federal court of the United States other than in the ordinary course of business, then the limitation in subsection (d) of this section shall not apply and the appellant shall be required to make an undertaking in the full amount otherwise required by this section.”
SECTION 2. G.S. 1a-1, Rule 42 (b), is amended by adding a new subdivision to read:
“(b) Separate trials. –
(1) The court may in furtherance of convenience or to avoid
prejudice and shall for considerations of venue upon timely
motion order a separate trial of any claim, cross-claim,
counterclaim, or third-party claim, or of any separate issue
or of any number of claims, cross-claims, counterclaims,
third-party claims, or issues.
(2) Upon motion of any party in an action that includes a claim
commenced under Article 1G of Chapter 90 of the General
Statutes involving a managed care entity as defined in G.S.
90-21.50, the court shall order separate discovery and a
Separate trial of any claim, cross-claim, counterclaim, or
Third –party claim against a physician or other medical
(3) Upon motion of any party in an action in tort wherein the
plaintiff seeks damages exceeding one hundred fifty
Thousand dollars ($150,000), the court shall order separate
trials for the issue of liability and the issue of damages,
unless the court for good cause shown orders a single trial.
Evidence relating solely to compensatory damages shall not
be admissible until the trier of fact has determined that the
defendant is liable. The same trier of fact that tries the
issues relating to liability shall try the issues relating to
SECTION 3. G.S. 1A-1, Rule 9(j), reads as rewritten:
“(j) Medical malpractice. – Any complaint alleging medical malpractice by a health care providerpursuant to G.S. 90-21.11 (2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:
(1) 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 who is reasonably expected to qualify
as an expert witness under Rule 702 of the Rules of Evidence
and who is willing to testify that the medical care did not
comply with the applicable standard of care;
(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.
Upon motion by the complainant prior to the expiration of the applicable
statute of limitations, a resident judge of the superior court for a judicial district in which venue for the cause of action is appropriate under G.S. 1-82 or, if no resident judge for that judicial district is physically present in that judicial district, otherwise available, or able or willing to consider the motion, then any presiding judge of the superior court for that judicial district may allow a motion to extend the statute of limitations for a period not to exceed 120 days to file a complaint in a medical malpractice action in order to comply with this Rule, upon a determination that good cause exists for the granting of the motion and that the ends of justice would be served by an extension. The plaintiff shall provide, at the request of the defendant, proof of compliance with this subsection through up to ten written interrogatories, the answers to which shall be verified by the expert required under this subsection. These interrogatories do not count against the interrogatory limit under Rule 33.”
SECTION 4. G.S. 8C-702(h) reads as rewritten:
“(h) Notwithstanding subsection (b) of this section, in a medical malpractice action as defined in G.S. 90-21.11(2)b. against a hospital, or other health care of medical facility, a person shall not give expert testimony on the appropriate standard of care as to administrative or other nonclinical issues unless the person has substantial knowledge, by virtue of his or her training and experience, about the standard of care among hospitals, or health care or medical facilities, of the same type as the hospital, or health care or medical facility, whose actions or inactions are the subject of the testimony situated in the same or similar communities at the time of the allege act giving rise to the cause of action.”
SECTION 5. G.S. 90-21.11 reads as rewritten:
“§ 90-21.11. Definitions.
The following definitions apply in this, Article:
(1) Health care provider- Without limitations, any of the following:
a. A person who pursuant to the provisions of
Chapter 90 of the General Status is licensed, or is
otherwise registered or certified to engage in the
practice of or otherwise performs duties associated
with any of the following: medicine, surgery,
dentistry, pharmacy, optometry, midwifery,
osteopathy, podiatry, chiropractic, radiology, nursing,
physiotherapy, pathology, anesthesiology,
anesthesia, laboratory analysis, rendering
assistance to a physician, dental hygiene,
psychiatry, or psychology.
b. 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.
c. Any other person who is legally responsible for
the negligence of; a person described by sub-subdivision a. of
this subdivision, 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.
d. Any other person acting at the direction or
under the supervision of, a person described by sub-subdivision
a. of this subdivision, 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.
(2) Medical malpractice action. – Either of the
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
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 Gneral 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.”
SECTION 6. G.S. 90-21.12 reads as rewritten:
“§ 90-21.12 Standard of health care.
(a) Except as provided in subsection (b) of this section, (b) of this section, inany
medical malpractice action as defined in G.S. 90-21.11(2)(a),
the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the care of such health care provider was not in accordance with the standard of practice among members of the same health care profession with similar training and
experience situated in the same or similar communities under the same or
similar circumstances at the time of the alleged act giving rise to the cause of action; or in the case of a medical malpractice action as defined in G.S. 90-21.11(2)(b), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the action or inaction of such health care provider was not in accordance with the standards of practice among similar health care providers situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action.
(b) In any medical malpractice action arising out of the furnishing or the failure to furnish professional services in the treatment of an emergency medical condition, as the term “emergency medical condition” is defined in 32 U.S.C. 1395dd(e)(1), the claimant must prove a violation of the standards of practice set forth in subsection (a) of this section by clear and convincing evidence.”
Section 7. Article 1B of Chapter 90 of the General Statutes is amended by adding the following new section to read:
§90-21.19. Liability limit for noneconomic damages.
(a) Except as otherwise provided in subsection (b) of this section, 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 five hundred thousand dollars ($500,000). Judgment shall not be entered against any defendant for noneconomic damages in excess of five hundred thousand dollars ($500,000) for all claims brought by all parties arising out of the same professional services. On January 1 of every third year, beginning with January 1, 2014, the Administrative Office of the Courts shall reset the limitation on damages for noneconomic loss set forth in this subsection to equal to five hundred thousand dollars ($500,000) times the ratio of the Consumer Price Index for November of the prior year to the Consumer Price Index for November 2011. The Administrative Office of the Courts shall inform the Revisor of Statutes of the reset limitation. The Revisor of Statutes shall publish this reset limitation as an editor’s note to this section. In the event that any verdict or award of noneconomic damages stated pursuant to G.S. 90-21.19B exceeds these limits, the court shall modify the judgment as necessary to conform to the requirements of this subsection.
(b) Notwithstanding subsection (a) of this section there shall be no limit on the amount of noneconomic damages for which judgment may be entered against a defendant if the trier of fact finds both of the following:
(1) The plaintiff suffered disfigurement, loss of use of part of
the body, permanent injury or death.
(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.
(c) The following definitions apply in this section:
(1) Consumer price Index. – The Consumer Price Index – All
Urban Consumers, for the South urban area, as published
By the Bureau of Labor Statistics of the United States
Department of Labor.
(2) Noneconomic damages. – Damages to compensate for
pain, suffering, emotional distress, loss of consortium,
inconvenience, and any other nonpecuniary compensatory
damage. “Noneconomic damages” does not include
punitive damages as defined in G.S. 1D-5.
(3) Same professional services. – The transactions,
Occurrences, or series of transactions or occurrences
alleged to have caused injury to the health care provider’s
(d) Any award of damages in a medical malpractice action shall be stated in accordance with G.S. 90-21.19B. If a jury is determining the facts, the court shall not instruct the jury with respect to the limit of noneconomic damages under subsection (a) of this section, and neither the attorney for any party nor a witness shall inform the jury or potential members of the jury panel of that limit.”
SECTION 8. Article 1B of Chapter 90 of the General Statutes is
amended by adding the following new section to read:
“§ 90-21.19B. Verdicts and awards of damages in medical malpractice
In any malpractice action, any verdict or award of damages, if supported by the evidence, shall indicate specifically what amount, if any, is awarded for noneconomic damages. If applicable, the court shall instruct the jury on the definition of noneconomic damages under G.S. 90-21.19(b).”
SECTION 9. G.S. 1-17 reads as rewritten:
“§ 1-17. Disabilities.
(a) A person entitled to commence an action who is under a disability at the time the cause of action accrued may bring his or her action within the time limited in this Subchapter, after the disability is removed, except in an action for the recovery of real property, or to make an entry or defense founded on the title to real property, or to rents and services out of the real property, when the person must commence his or her action, or make the entry, within three years next after the removal of the disability, and at no time thereafter.
For the purpose of this section, a person is under a disability if the person meets one or more of the following conditions:
(1) The person is within the age of 18 years.
(2) The person is insane.
(3) The person is incompetent as defined in G.S. 35A-1101(7)
(a1) For those persons under a disability on January 1, 1976, as a result of being imprisoned on a criminal charge, or in execution under sentence for a criminal offense, the statute of limitations shall commence to run and no longer be tolled from January 1, 1976.
(b) Notwithstanding the provisions of subsection (a) of this section, and except as otherwise provided in subsection (c) of this section, an action on behalf of a minor for malpractice arising out of the performance of or failure to perform professional services shall be commenced within the limitations of time specified in G.S. 1-15(c), except that if those time limitations expire before the minor attains the full age of 19 years, the action may be brought before the minor attains the full age of 19 years.
(c) Notwithstanding the provisions of subsection (a) and (b) of this section, an action on behalf of a minor for injuries alleged to have resulted from malpractice arising out of a health care provider’s performance of or failure to perform professional services shall be commenced within the limitations of time specified in G.S. 1-15(c), except as follows:
(1) If the time limitations specified in G.S. 1-15(c) expire before
the minor attains the full age of 10 years, the action may be
brought any time before the minor attains the full age of 10
(2) If the time limitations in G.S. 1-15(c) have expired and
before a minor reaches the full age of 18 years a court has
entered judgment or consent order under the provisions of
Chapter 7B of the General Statutes finding that said minor
is an abused or neglected juvenile as defined in G.S. 7B-
101, the medical malpractice action shall be commenced
within three years from the date of such judgment or
consent order, or before the minor attains the full age of 10
years, whichever is later.
(3) If the time limitations in G.S. 1-15(c) have expired and a
minor in in legal custody of the State, a county, or an
approved child placing agency as defined in G.S. 131D-10.2,
the medical malpractice action shall be commenced within
one year after the minor is no longer in such legal custody,
or before the minor attains the full age of 10 years,
whichever is later.”
SECTION 10. Severability. – If the provisions of Section 7 of this act are declared to be unconstitutional or otherwise invalid by final decision of a court of competent jurisdiction, then Section 8 of this act is repeated, but the invalidity does not affect other provisions or applications of this act that can be given effect without the invalid provisions. If any other provision of this act or its application to any person or circumstance is held invalid, the remainder of this act or the application of the provision to other persons or circumstances is not affected.
SECTION 11. Sections 5, 6 and 9 of this act become effective October 1, 2011, and apply to causes of actions arising on or after that date. The remainder of this act becomes effective October 1, 2011, and applies to actions commenced on or after that date.
In the General Assembly read three times and ratified this the 13th day of June, 2011.
s/ Walter H. Dalton
President of the Senate
s/ Dale R. Folwell
Speaker Pro Tempore of the House of Representatives
VETO Beverly E. Perdue
Became law notwithstanding the objections of the Governor, 5:48 p.m. this 25th day of July, 2011.
s/ Denise Weeks
House Principal Clerk