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The Law of Medical Malpractice in North Carolina:

A Survey of Basic Considerations

This article provides an overview of medical malpractice law in North Carolina. As will be discussed, North Carolina imposes an assortment of rules that can be pitfalls for the unwary. Because it is useful for laypersons who have been injured by healthcare treatment to have some understanding of the law, the article will describe North Carolina statutes and case law in plain language with minimal use of legal jargon, so that the material is accessible to non-lawyers as well as legal practitioners.

Section I below summarizes broad principles and concepts. Sections II through XI examine some of the mechanics of filing and litigating a medical malpractice action in North Carolina.

To jump directly to any topic in the Table of Contents, simply click on it.

I. Overview of Basic Principles and Concepts
II. Filing Deadlines for Medical Malpractice Claims
-Basic Time Limit
-Exceptions
III. Presuit Requirements for Medical Malpractice Cases
-Certification from a Medical Expert
-Extra Time for Obtaining Certification
-Arbitration
IV. Immunities and Limitations on Liability
-Emergency Treatment
-County Hospitals
-Nursing Home Medical Directors
-Workers’ Compensation Situations
V. Medical Expert Witnesses
-Who May Testify?
-Rules About Scientific Testimony
-Local/Community Standard
VI. Contributory Negligence / Joint and Several Liability
VII.Limitations on Damages
-Economic Damages
-Non-economic Damages
-Punitive Damages
VIII. Limitations on Attorneys Fees
IX. Patient Compensation Funds
X. Apologies and Sympathetic Gestures
XI. Miscellaneous Matters
-Definition of “Medical Malpractice”
-Communications with Plaintiff’s Physicians
-Guarantees and Warranties of Treatment Results
-Release of Original Wrongdoer
-Informed Consent
-Discovery Procedures
XII. Disclaimer

I. Overview of Basic Principles and Concepts

Medical malpractice, also known as medical negligence, is the term for a legal claim alleging that a doctor or other health professional provided substandard healthcare. There are certain things a plaintiff bringing a medical malpractice lawsuit must prove. Specifically, a plaintiff must demonstrate:

  1. The standard of healthcare that should have been provided;

2. A breach of that standard of healthcare;

3. That the breach caused injury to the plaintiff; and

  1. That the plaintiff suffered “damages,” meaning a loss for which monetary compensation is due. (See Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238 (2009).)

Because North Carolina adheres to a local/community standard of healthcare, the focus will be on the standards of practice among members of the same healthcare profession “situated in the same or similar communities.”N.C. Gen. Stat. § 90-21.12(a).

In this age of telemedicine, a malpractice claim may be brought against a nonresident physician who practices medicine or surgery in North Carolina by use of electronic or other media. N.C. Gen. Stat. § 90-21.12A.

II. Filing Deadlines for Medical Malpractice Claims

Basic Time Limit

Like all states, North Carolina imposes rigid time limits for filing lawsuits.In North Carolina, a medical malpractice action generally must be commenced within three years from the date of the negligent act. N.C. Gen. Stat. § 1-15(c).

Exceptions

There are certain circumstances in which the time limit for filing suit, also known as the “statute of limitations,”is longer than three years. An extension to four years is possible if the injury or loss was not readily apparent at the time it occurred. Also,if the injury involves a foreign object left in a patient’s body, suit may be brought within 10 years, as long as it is commenced within one year after the foreign object’s existence is discovered. N.C. Gen. Stat. § 1-15(c). See Black v. Littlejohn, 312 N.C. 626 (1985).

The statute of limitations can also sometimes be extended if the patient was a child at the time the medical negligence occurred. The general idea is that the clock should not expire until the child is old enough to make his or her own decision about whether to take legal action. N.C. Gen. Stat. § 1-17(c).

III. Presuit Requirements for Medical Malpractice Cases

North Carolina law demands that certain steps be taken before filing a medical negligence suit. Most importantly, a plaintiff must obtain a certification from a medical expert stating that the case has some merit. Generally speaking, unless the plaintiff is able to find a qualified medical professional who will support the claim, the lawsuit will be immediately dismissed, as discussed in more detail below.

Certification from a Medical Expert

Any malpractice complaint must assert that the relevant medical records reasonably available to the plaintiff were reviewed by a health professional who is willing to testify that the healthcare did not satisfy the applicable standard of care. N.C. Gen. Stat. § 1A-1, Rule 9(j).

The health professional who provides this opinion must be someone who can potentially qualify as an expert witness under N.C. Gen. Stat. § 8C-702. Thus, he or she must be a licensed healthcare provider, and, in addition, must specialize in the same or a similar specialty as the defendant, if the defendant is a specialist. Also, the expert must either have an active clinical practice or instruct students in a professional school.

The North Carolina courts enforce the pre-suit certification requirement strictly. In Alston v. Hueske, 781 S.E.2d 305 (N.C. Ct. App. 2016), for instance, the North Carolina Court of Appeals held that the certification requirement was not satisfied because the complaint did not state that the expert witness was a person in the same or similar specialty as the defendant. Furthermore, this deficiency could not be fixed simply by modifying or “amending” the legal papers. “[O]ur courts have ruled that if a pleader fails to properly plead his [medical malpractice] case in his complaint, it is subject to dismissal without the opportunity for the plaintiff to amend his complaint.”Cf.Boyd v. Rekuc, 782 S.E.2d 916 (N.C. Ct. App. 2016).

One wrinkle to the pre-suit certification requirement is that it does not apply to cases of mere “ordinary negligence.” For instance, in Horsley v. Halifax Regional Medical Center, Inc., 220 N.C. App. 411 (2012), the lawsuit was for ordinary negligence only, rather than medical malpractice, because a nurse’s decision whether to provide a patient with a cane involved a matter of ordinary care rather than the exercise of clinical judgment and skill. Thus, since the suit was not truly for malpractice, no pre-suit certification was necessary.

Also, no pre-suit certification is required in situations of obvious error such as where a surgeon left a foreign object in a patient during surgery. In such situations, the possibility of medical negligence is so obvious on its face that “the thing speaks for itself”—or in legal jargon res ipsa loquitur.

Extra Time for Obtaining Certification

To assist a plaintiff who has delayed filing suit until the eleventh hour, North Carolina provides a means to extend the statute of limitations 120 days to allow the plaintiff enough time to obtain a certification from a medical expert while still commencing suit within the statute of limitations. N.C. Gen. Stat. § 1A-1, Rule 9(j). See Watson v. Price, 211 N.C. App. 369 (2011).

Arbitration

Arbitration is a method of resolving disputes outside of a courtroom. More specifically, the parties agree they will have their dispute heard by an arbitrator, rather than a judge and jury, and will follow less formal procedures than would apply in court. To encourage voluntary arbitration of medical malpractice claims, North Carolina has adopted a statute that addresses matters such as the process for selecting an arbitrator, how long the arbitration should take, and so forth. N.C. Gen. Stat. § 90-21.60 et seq.

If the parties do not agree to arbitrate, they must file a declaration with the court stating they have been informed of their option to arbitrate but have not unanimously agreed to submit the dispute to arbitration. N.C. Gen. Stat. § 90-21.61(c). The declaration must be filed prior to the discovery scheduling conference.

IV. Immunities and Limitations on Liability

North Carolina lawmakers have decided there should be extra hurdles to overcome when bringing certain specific types of medical negligence suits.

Emergency Treatment

Because emergency situations allow healthcare providers less time for contemplating their actions, the law provides that if the injury occurred during emergency medical treatment, the plaintiff must prove faulty careby clear and convincing evidence. This is a more difficult task than satisfying the usual standard of proof, which simply asks whether it is “more likely than not” that the healthcare was substandard. N.C. Gen. Stat. § 90-21.12(b).

On the other hand, North Carolina does not recognize the “sudden emergency doctrine,”as some states do. This doctrine says that a healthcare provider who is suddenly and unexpectedly confronted with imminent danger is not required to use the same judgment that would be required if there were more time to make a decision. This doctrine is “unnecessary and inapplicable” in the medical negligence context because medical emergencies are already contemplated by (and built into) the standard of healthcare set forth in N.C. Gen. Stat. § 90–21.12, the North Carolina Court of Appeals has said. SeeWiggins v. East Carolina Health-Chowan, Inc., 234 N.C. App. 759 (2014).

One specific rule touching on emergency treatment is that in cases involving an epinephrine auto-injector, health professionals may have immunity from being sued. N.C. Gen. Stat. § 90-21.15A(f).

County Hospitals

In contrast to some states, North Carolina permits medical negligence suits to be brought against county-owned hospitals. These hospitals do not have governmental immunity because they are considered to be engaged in a proprietary, rather than governmental, function. See Odom v. Lane, 161 N.C. App. 534 (2003).

Nursing Home Medical Directors

Medical directors of nursing homes generally cannot be sued for medical negligence, but there are some exceptions, such as where the claim asserts “gross negligence”in supervising the medical staff (i.e., a particularly high level of negligence). N.C. Gen. Stat. § 90-21.18.

Workers’ Compensation Situations

Patients may be barred from suing for medical negligence if they receive defective healthcare treatment for an injury suffered on the job. The reason is because in workers’ compensation situations, any medical negligence becomes part of the workers’ compensation claim “and shall be compensated for as such.”N.C. Gen. Stat. § 97-26(h).

V. Medical Expert Witnesses

Medical negligence cases depend heavily on the testimony of medical experts. Because of this, North Carolina imposes stringent requirements on who may serve as medical expert witnesses and what testimony they may offer.

Who May Testify?

First, a witness may not give expert testimony on the appropriate standard of healthcare unless he or she is a licensed healthcare provider in North Carolina “or another state.”N.C. Gen. Stat. § 8C-702(b). In addition, the expert must specialize in the same or a similar specialty as the defendant, if the defendant is a specialist.

Further, the expert must either have an active clinical practice or instruct students in a professional school.N.C. Gen. Stat. § 8C-702(b)-(e).

Rules About Scientific Testimony

If the expert testimony is of a scientific, technical, or other specialized nature, it will not be admissible in court unless (1) it is based upon sufficient facts or data; (2) it is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case. N.C. Gen. Stat. § 8C-702(a).

Local/Community Standard

Notably, North Carolina adheres to a local/community standard of healthcare, defined as “the standards of practice among members of the same healthcare 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.”N.C. Gen. Stat. § 90-21.12(a).

The local/community standard serves to limit who may testify as an expert witness, because the expert must be knowledgeable about local standards. Although an expert witness is not required “to have actually practiced” in the same community,Smith v. Whitmer, 159 N.C. App. 192, 196 (2003), the witness must be familiar with the standard of care in the community where the injury occurred or in similar communities. The issue of whether an expert is familiar enough with local standards is frequently litigated. For instance, in Kearney v. Bolling the parties clashed over whether the community with which the expert was familiar—Beaumont, Texas—was a similar community to Winston-Salem, North Carolina, where the alleged malpractice had occurred. The Court of Appeals ultimately deferred to the trial court’s ruling that the two communities were sufficiently similar,so the expert was adequately knowledgeable about local Winston-Salem, North Carolina standards.774 S.E.2d 841 (N.C. Ct. App. 2015).

A similar issue arises in suits against entities such as hospitals or other healthcare facilities. An expert witness testifying about “administrative or other nonclinical issues” must be knowledgeable about the standard of care among health or medical facilities of the same type “situated in the same or similar communities.”N.C. Gen. Stat. § 8C-702(h).

VI. Contributory Negligence / Joint and Several Liability

North Carolina is one of only a handful of states in which a plaintiff bringing a negligence suit is barred from recovering any damages if he or she was at fault in any degree. In fact, even if a healthcare provider was 99 percent to blame for an injury, and the plaintiff only 1 percent, the plaintiff will lose the lawsuit.By contrast, in most other states fault is apportioned or divvied up so that a plaintiff whose own conduct was flawed can still recover some damages from a negligent health professional.In legal terms, North Carolina adheres to the doctrine of “contributory negligence,”instead of the “comparative fault”doctrine used in most other states.

While many legal experts consider North Carolina’s contributory negligence rule to be unfair to plaintiffs, and state lawmakers occasionally introduce bills to rectify the situation, to date no such bill has been enacted.

As a result of North Carolina’s harsh rule, it can make a crucial difference in the outcome of a case if a patient provided inaccurate health history information, neglected to follow a doctor’s instructions, and so forth. For instance, in McGill v. French, 333 N.C. 209 (1993), a patient claimed that his doctor negligently failed to inform him he had prostate cancer. The doctor was able to defeat the medical malpractice suit by showing that the patient failed to keep appointments or report his worsening symptoms to the doctor“during a crucial time of his illness.”Because the patient’s own negligent conduct contributed to his injuries, he was barred from recovering any monetary damages from the doctor under North Carolina’s defendant-friendly rule on contributory negligence.

But like other legal rules, North Carolina’s contributory negligence rule has subtleties, such as that it sometimes matters which party’s negligence occurred first. In Andrews v. Carr, 135 N.C.App. 463 (1999),a doctor botched a hernia operation. The doctor insisted the patient was partly to blame because, after the surgery, he performed sit-ups and engaged in other strenuous activities that ignored his doctor’s recuperation advice; because the patient ignored his doctor’s orders, his suit should be barred by contributory negligence, the doctor argued. However, the North Carolina Court of Appeals disagreed, emphasizing that the patient’s misconduct took place subsequent to the doctor’s negligent operation.As the appeals court explained, any injuries the patient “caused to himself” as a result of his failure to follow his doctor’s treatment advice would not bar his claim, because the doctor’s negligence had already occurred. Therefore, rather than defeat his medical malpractice claim in its entirety, the patient’s post-operation negligent conduct would be taken into account only in assessing the amount of his monetary damages.

An entirely separate issue that sometimes arises is how to allocate monetary damages among defendants when there is more than one culpable healthcare provider. The issue of “contribution” among multiple defendants is addressed by N.C. Gen. Stat. § 1B-1 et seq.

VII. Limitations on Damages

Money claimed by a plaintiff as compensation for a loss is referred to as “damages.” In North Carolina medical negligence suits, some types of damagesare limited or “capped.”

Economic Damages

There is no cap on damages such as medical bills (past and future), lost earnings (past and future), andharm to personal property (such as a motor vehicle).

Non-economic Damages

However, there is a limit on damages forpain and suffering or emotional distress. In 2011 North Carolinaimposed a cap of $500,000 on these so-called non-economic damages; the cap is adjusted annually for inflation. The cap does not apply if the defendant acted fraudulently, intentionally, with malice, recklessly, or with gross negligence, and if the plaintiffalso suffered death or permanent injury. N.C. Gen. Stat. § 90-21.19.

Punitive Damages

Punitive damagesawarded to a plaintifffor the purpose of punishing an especially badly behaving defendant; unlike other damages, they are not measured by the plaintiff’s proven loss. Theyare capped at three times the amount of “compensatory”damages or $250,000, whichever is greater. N.C. Gen. Stat. § 1D-25.

VIII. Limitations on Attorneys Fees

Unlike some states, North Carolina does not have a statute that limits medical malpractice attorneys fees.

IX. Patient Compensation Funds

While some states have created compensation funds to reimburse certain patients injured by healthcare treatment, North Carolina has not done so.

X. Apologies and Sympathetic Gestures

A healthcare provider’s apology for an adverse treatment outcome, or an offer to take certain steps to remedy the situation, is not admissible in court to prove negligence or culpable conduct by the healthcare provider. N.C. Gen. Stat. § 8C-413.

XI. Miscellaneous Matters

Definition of “Medical Malpractice”

North Carolina defines “medical malpractice action” to include suits for negligent credentialing or negligent supervision, at least for certain purposes. N.C. Gen. Stat. § 90-21.11(2).

Communications with Plaintiff’s Physicians

Generally speaking, North Carolina law limits communications between the defendant’s attorneys and the plaintiff’s physicians. Defense counsel may not interview the plaintiff’s treating physicians privately without plaintiff’s “express consent,” held the North Carolina Supreme Court in Crist v. Moffatt, 326 N.C. 326 (1990). Instead, the defendant must follow the discovery procedures that are used in litigation. The prohibition on contacting the physicians directly remains in effect even if the plaintiff has waived the physician-patient “privilege,” which is the legal rule that requires a physician to maintain patient confidentiality.

Guarantees and Warranties of Treatment Results

No guarantee or warranty as to the result of a healthcare procedure can be enforced without a written document signed by the healthcare provider or his or her authorized representative. N.C. Gen Stat. § 90-21.13(d).

Release of Original Wrongdoer

Settling a claim against a person responsible for a personal injury does not necessarily bar suit against a medical professional for the negligent treatment of the same injury. N.C. Gen. Stat. § 1-540.1.

Informed Consent

A healthcare provider cannot be held liable for providing healthcare treatment without informed consent if he or she complies with the procedures set forth in N.C. Gen Stat. § 90-21.13.

Discovery Procedures

N.C. Gen. Stat. § 1A-1, Rule 26(f1) addresses discovery procedures in medical malpractice actions. The judge must direct the parties to appear for a discovery conference within a specified time period to establish an appropriate discovery plan that includes a schedule for designating expert witnesses, and so forth.
XIII. Disclaimer

XII. Disclaimer

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