Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.
North Carolina caps non-economic (pain and suffering) damages in medical malpractice cases at $500,000 by statute, without regard to the severity of the patient's injury. The cap is adjusted annually for inflation.
Joint and Several Liability
In North Carolina, when more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. North Carolina has abolished the collateral source rule, such that evidence of the amount actually paid may be submitted to the jury for the purpose of determining the reasonable value of medical services.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In North Carolina, the statute of limitations for medical malpractice cases is two years from the date of the act or omission alleged to have caused the injury, or one year from the cause was or reasonably should have been discovered, but not more than four years after the date of injury. For a foreign object left within a patient's body the statute of limitations is one year from the date of discovery, but not more than ten years from the date of injury.
For minors under the age of eighteen, a medical malpractice case may be filed at any time before the minor reaches the age of nineteen, except that if the standard statute of limitations expires before the child reaches the age of ten, the cause of action must be commenced before the child reaches the age of ten. However, that time may potentially be extended for children who are determined by a court to have been abused or neglected, or where a child has been placed in the legal custody of the state, a county, or an approved child placing agency.
Additional rules affecting malpractice litigation in the State of North Carolina include:
Alternative Dispute Resolution
In North Carolina, the parties to a malpractice case may agree to submit the case to arbitration, either before or after a cause of action has been filed. When the parties submit a cause through the statutory arbitration process, when deciding the case the arbitrator may make an award of damages not in excess of one million dollars, no matter how many claimants or defendants are involved in the cause. If damages are awarded to the claimant, the arbitrator must make a finding as to whether the plaintiff's injury was caused by the defendant's negligence.
Medical Expert Witness Restrictions
In order to testify in a medical malpractice action in North Carolina, the proposed expert must be a licensed health care provider within the United States. If the person against whom the proposed expert's testimony is to be offered is a specialist, then the proposed expert must also be specialized in the same specialty, or specialize in a similar specialty that encompasses performance of the procedure that is the subject of the complaint and have prior experience treating patients similar to the claimant. However, a qualified physician who is knowledgeable of the standard of care for nurses, certified nurse midwifes, physician assistance, and related professionals or medical support staff may give expert testimony with regard to the stndard of care for those professionals and staff members with which the proposed expert is familiar.
During the year immediately preceding the date of the act or omission that is the basis for the malpractice action, a majority of the proposed expert's time must have been devoted to the active clinical practice of the same health profession as the person against whom the expert's testimony is being offered and, if that person is a specialist, the active clinical practice of the same or a sufficiently similar specialty; or the instruction of students in an accredited professional or clinical research program in the same health profession as the person against whom the expert's testimony is being offered, and if that person is a specialist within an accredited health professional school, residency or clinical research program in the same specialty. If the party against whom testimony is being offered is a general practitioner, then the proposed expert witness may qualify if during the year preceding the act or omission underlying the claim, the majority of the proposed expert's time has been devoted to active clinical practice as a general practitioner, or instruction of students in an accredited health professional school, residency or clinical research program in the general practice of medicine.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Uner North Carolina's apology law, statements by a health care provider apologizing for an adverse outcome in medical treatment, offers to undertake corrective or remedial treatment or actions, and gratuitous acts to assist affected persons are not admissible in a medical malpractice action to prove negligence or culpable conduct by the health care provider.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.