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.
You helped us navigate through a difficult time in our lives with such compassion and we are eternally grateful for everything.”
– Client A. and B. D.
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.
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. A link to this draconian piece of legislation, entitled Session Law 2011-400 Senate Bill 33 may be found here.
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 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
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:
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.
The North Carolina Pattern Jury Instructions say that the plaintiff has the burden of proving negligence and, further, must prove that the negligence was the cause of the injury. The act of negligence is a sequence of events that a prudent doctor or health care provider could have foreseen would likely lead to an injury.
The plaintiff does not have to prove that the defendant’s negligence was the only cause of the injury. There may be more than one cause, in fact. The plaintiff has to prove, by the greater weight of the evidence, only that the defendant’s negligence was a cause.
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:
To hold an institution liable for ACTS OF THE INSTITUTION itself, the following can be a source of liability.
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.
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