North Carolina Medical Malpractice Laws

The trust that a patient puts in their chosen health care provider is of the greatest importance. Patients allow their health care providers to see their medical history, learn about their current and ongoing physical ailments, prescribe medications and perform procedures that often require their life to be put in the hands of their physician. This trust is given due to the standard of care that every health care provider agrees to meet and the level of trust is severed when the standard of care is not met. However, after an injury is caused by a health care provider, it can be difficult to know what steps need to be taken in order to seek a legal remedy.

If you are seeking damages for a claim of medical malpractice, time is of the essence since the law in North Carolina has created a finite period of time in which you are permitted to bring a claim.

In addition, the law in North Carolina has put into place a myriad of steps that need to be taken before you can even get your case started. To help, this page was created to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in North Carolina; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in North Carolina.

Suing for Medical Malpractice in North Carolina

If you were injured due to the negligence of a health care provider, you may be in a position to file a medical malpractice lawsuit. The law in North Carolina places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in North Carolina allows the defense of pure comparative negligence to be used.

When it comes to medical malpractice claims, many, if not most, cases settle out of court prior to the case advancing to the trial stage of litigation. However, if the case does advance to trial and you are successful in proving your case and receive an award of damages as a result, like many other states, the law in North Carolina places a cap those damages.

How long do I have to file a medical malpractice case in North Carolina?

The first step in bringing a claim of medical malpractice against a healthcare provider is making certain that you are within the proper timeframe. The law in North Carolina mandates that an action for personal injury must be filed within three years from the date that the injury occurred. [1] This time limitation is known as the “statute of limitations.” The reason behind placing a time limitation on when you may file a medical malpractice claim is that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling.

While the three-year window of time to file a medical malpractice claim is strictly followed, there is an exception to the rule known as the “discovery rule.”

It is not uncommon for an injury that occurred due to the negligence of a healthcare provider to be discovered almost immediately after occurring. In those situations, it is best to consult with an attorney and file a claim as soon as possible. However, situations do exist where the injury may not be discovered by the injured party for months, even years, after the act that caused the injury occurred. In order to prevent punishing the injured party for not discovering their injury, the lawmakers in North Carolina created the discovery rule. The discovery rule freezes the three-year time limit and only begins to run once you either discover, or should have discovered through reasonable diligence, the injury that was caused by the medical malpractice. However, the time period to discover your injury is capped at four (4) years [2].

Another exception to the statute of limitations exists if the injured party is a minor. If the person who sustained an injury due to medical malpractice was under the age of ten years old at the time of injury, they may file a lawsuit at any time before their tenth birthday.

In North Carolina Medical Malpractice Cases, Who is Responsible?

When most people think of a medical malpractice lawsuit, they think of an injured patient bringing a lawsuit against an individual, usually a doctor, due to a mistake the doctor made. While that is not a wildly inaccurate description of a medical malpractice claim, there are many more people, and even organizations, in the medical profession that can be held responsible for the injury or death of a patient than simply a doctor.

In North Carolina, you may bring a medical malpractice claim against any health care provider that you allege was negligent and feel that their negligence caused your injury. When it comes to medical malpractice, a health care provider may be deemed to have been negligent when they performed an act that a reasonable professional would not have done, or the failed to do an act that a reasonable professional would have done, under the same or similar circumstances. The focus is not on the healthcare providers’ character or intent, but on whether professional standards of conduct were met.

The law in North Carolina considers a health care provider to be anyone licensed to perform medical services on patients such as:

A person who is licensed or registered or certified to engage in the practice of or otherwise performs duties associated with 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 as well as a hospital, a nursing home. [3]

What if I am partially to blame? Can I Still Recover Money for North Carolina Medical Malpractice?

Currently, four states (Alabama, Maryland, North Carolina, Virginia) and the District of Columbia adhere to the doctrine of pure contributory negligence.

The doctrine of contributory negligence is a tool for a defense to use against a plaintiff when it can be proven that the plaintiff contributed in some way to their own injury. The doctrine states that if the defense is able to prove that the plaintiff was at least partially responsible for their injury, the plaintiff is completely barred from receiving damages in the case. This rule is applicable even in a scenario where a court finds that the defendant was 99% to blame for the complained of injury.

For example, imagine if a surgeon fixed a patient’s broken leg and incorrectly prescribed a treatment plan for the patient to follow that included 45 days of non-weight bearing activity when the proper course of treatment would have called for at least 60 days. However, the patient, going against the physician’s orders, began to jog on day 40 of the treatment plan. If the patient were to suffer medical consequences as result of going against the prescribed treatment plan, it is possible that he would not be able to recover damages in an action against the physician if it can be proven that the plaintiff was partially to blame for his own injury due to the fact that he began running on the leg before the doctor deemed appropriate.

The doctrine of contributory negligence is incredibly advantageous for a named defendant in a medical malpractice case and undisputedly harsh against the plaintiff bringing the case. For this reason, other states have adopted other forms of comparative fault systems like pure comparative fault and modified comparative fault.

Pure comparative fault allows a plaintiff to recover damages for injuries even if they are found to have been 99% responsible for their injury. Under the system, while the plaintiff is allowed to recover damages, the damages are reduced in proportion to the degree of attributed fault.

Modified comparative fault, which has been adopted by the majority of states, reduces damages in proportion to the degree of attributed fault. There are two different schools of thought when it comes to modified comparative fault. 12 states follow a rule whereby the damaged party is not permitted to recover damages if it is proven that they are 50% or more responsible for their injury. 21 states follow a rule whereby the damaged party is not permitted to recover damages if it is proven that they are 51% or more responsible for their injury.

Under either of those modified comparative fault systems, if the court were to find that the plaintiff was 40% at fault for his own injury due to the fact that he placed weight on his leg prior to the physician’s incorrect recommendation and the physician was 60% at fault for recommending a treatment plan that was 15 days too short, any recovery in the case would be reduced according to the proven percentage of fault. If the total damages awarded to the plaintiff were $50,000, the plaintiff in the above scenario would be awarded $30,000.

Are there medical malpractice recovery caps in North Carolina?

If your medical malpractice claim was successful, it is likely that a court will award you a sum of money known as damages. The law in North Carolina has established different types of damage awards that you may receive:

Economic Damages are awarded for the purpose of helping to put you back in the monetary position which existed before your injury occurred. For example, economic damages help to repay the money you lost as a result of your injury, such as medical expenses, wages lost due to an inability to work, physical therapy costs, loss of future earnings, etc.

Non-economic Damages are meant to compensate you for occurrences that are hard to properly quantify like; pain and suffering, loss of consortium, and the loss of enjoyment of life.

Punitive Damages are not meant to compensate you for your injury. Instead, North Carolina awards punitive damages with the intention of punishing the defendant and attempting to deter future similar behavior.

The law in North Carolina places a $500,000 overall cap on non-economic damages awarded in a medical malpractice action. [4] As of 2014, the $500,000 cap is to be evaluated every three years and possibly increased after a thorough evaluation of the consumer price index is conducted.

The law in North Carolina limits an award of punitive damages to the greater of three times the amount of the compensatory damage award or $250,000. [5]

Expert witness reporting and testimony

An expert witness is very important to your medical malpractice case for a two reasons. First, an expert witness will be able to provide testimony to the court which will go towards proving that there was a breach of the standard of care owed to you by a health care provider and that the breach was the proximate cause of your injury. Second, the law in North Carolina requires the opinion of an expert witness to be given in order for your case to ever reach trial.

The law in North Carolina requires a qualified expert to assert that they have reviewed the available records and are willing to testify that the named defendants did not adhere to the requisite standard of care. [6] to file a document called a certificate of review within sixty days (60) of serving your complaint upon the defendant. The certificate of review is meant to act as a way of preventing the filing of frivolous lawsuits. Within the certificate, you must verify that you have consulted with an expert and that the expert reviewed the facts of your case and concluded that the filing of the claim has merit. Failing to file the certificate of review will result in the dismissal of your case. [8]

In North Carolina, a witness is deemed to be an expert when they either specialize in the same specialty as the defendant or specialize in a similar specialty that includes the performance of the procedure that is the subject of your complaint and have prior experience treating similar patients. [7]

Are some parties immune from medical negligence cases?

Sovereign immunity is a state’s immunity from most kinds of lawsuits unless the state agrees to waive its immunity. North Carolina has partially waived its sovereign immunity. In an action against the state or its departments, institutions or agencies, damages are limited to $1,000,000 per occurrence. [8]

However, this type of immunity does not apply to hospitals. The law in North Carolina does not consider a hospital to be a governmental entity and thus they are to be treated like any other private corporation and are subject to liability in a medical malpractice action.

Settling medical malpractice cases in North Carolina

In an effort to make civil litigation more economical, efficient, and satisfactory to litigants and the State, the law in North Carolina mandates court-ordered mediated settlement conferences before a case can reach trial.

A mediated settlement conference is a pretrial, court-ordered conference of the parties to a civil action and their representatives conducted by a mediator of their choosing. A mediator is a neutral person who acts to encourage and facilitate a resolution of a pending civil action. [9]

Litigating medical negligence cases in North Carolina

A claim for medical malpractice in North Carolina begins with the filing of a complaint. The complaint must specifically describe the malpractice that you claim to have occurred as well as ask the court for relief.

In most cases, after a defendant receives the complaint from the plaintiff, a claim for medical malpractice is settled prior to the claim going to trial. However, in situations where a settlement cannot be reached, the case will proceed to the litigation stage.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court

In North Carolina, a civil action first begins with the filing of the complaint with the clerk of the appropriate court. The complaint is the legal document used to begin a civil lawsuit. The complaint document should include:

• Your name
• The names of all of the defendants
• The address of all named defendants
• The specific facts giving rise to your claim
• A general request for relief from the court

Once the complaint is filed with the appropriate court, it must then be personally served upon the defendant(s) by the sheriff. Once the defendant(s) is served, he has thirty (30) days to file an answer at the same court.

Preparing for Litigation

After the complaint and answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a process that is designed to allow both sides to disclose information to each other in order to prevent unnecessary surprises at trial.

The discovery process can include:

• Interrogatories
• Depositions
• Production of documents
• Requests for admission

Essentially, discovery includes any item that can help bolster the legal argument of either side.

Interrogatories are written questions posed to the other side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. The actual deposition involves a question and answer session between opposing counsel and the aforementioned possible parties. Attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating.

Production of documents is a process where each side is permitted to request documents that may be used at trial.

Requests for admission are statements posed by one side to the other for the purpose of having the other side admit or deny.

Usually, after the discovery process has been completed, the next stage of preparation begins which involves the taking of depositions. A deposition is witness’s sworn out-of-court testimony used to gather information as part of the discovery process and, in limited circumstances, may be used at trial.

In a medical malpractice case, it is possible that the person bringing the claim will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist.

Pretrial Litigation

The parties involved in a medical malpractice claim are allowed to agree to a settlement at any point prior to the beginning of a trial. The litigation process is lengthy and expensive and because of this, most cases do settle prior to going to trial.

In an effort to settle, a court will mandate that both sides attend a settlement conference.

If the parties are unable to come to a settlement agreement during mediation, trial is likely the next step in the litigation process. In situations where more than one defendant is named in the lawsuit, it is possible that a settlement may be reached with some, but not all of the defendants. The case would then proceed to trial as planned against the defendants that did not agree to a settlement.

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of North Carolina: a judge or a jury. In North Carolina, juries are permitted in all cases involving claims for monetary damages and in some cases seeking equitable relief.

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. If an attorney does not feel a particular potential juror will be fair, the attorney can ask the judge not to allow that person to sit on the jury. Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In North Carolina, a person is considered to be qualified to serve as a juror if they are a citizen of the State and resident of the county, have not served as a juror during the preceding two years or have not served a full term of service as a grand juror during the preceding six years, are 18 years of age or over, are physically and mentally competent, can understand the English language, and have not been convicted of a felony [10].

After the jury selection is completed, opening statements will begin. During opening statements, each side will present what they believe the evidence will show during the course of the trial process.

From there, the plaintiff will begin to argue their case. Witnesses will likely be called and expert testimony will be used to attempt to show that the physician was negligent and that the negligence was the cause of the plaintiff’s injury.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their case. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place and jury instructions will then be given by the judge to the jury. The jury is then free to deliberate and come back with a finding.

Appeal

It is not uncommon for the losing side in a medical malpractice case to appeal a decision from the lower court. The North Carolina Court of Appeals reviews the final orders and judgments made by North Carolina District Courts and has authority to reverse or modify the decisions made.

An appeal is usually based upon the notion that the lower court made a clear error in resolving the facts of the case, abused its discretion in making the decision or misinterpreted or failed to follow the applicable law.

If a party wishes to appeal a decision rendered by a lower court, the appeal must be filed within thirty (30) days of the order. [11]

How to find the best North Carolina Medical Malpractice Lawyer for your case

Medical malpractice litigation is complicated, messy and sometimes confrontational. If you or a loved one has had the unfortunate experience of being injured as a result of the negligence of a health care provider, it is likely that the last thing you want to do is deal with the intricacies and nuances associated with filing a medical malpractice lawsuit. Hiring competent, diligent and experienced legal representation can take your mind off of the legalese so that you can focus on healing.

One of the main motivating factors in bringing a medical malpractice lawsuit against a healthcare provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. It is not fair that you not only have to physically suffer for the negligence of another let alone be left with out-of-pocket expenses that you would not otherwise have incurred had the negligence not taken place. A strong legal representative can help obtain monetary relief from the court that will help compensate you for your injuries.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. Take your time and interview more than one firm so that you can get a good sense of what each firm brings to the table. Some attorneys and firms may be stronger in some areas than others. Determine what qualities are important to you and go from there.

It is important to ask an attorney or law firm their level of experience in the world of law centered on medical malpractice. In law, experience is usually a plus. You will want a seasoned attorney or firm that has seen many different scenarios that can come into play in a medical malpractice case. You may also want to ask how many cases they have handled that are similar to yours. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be in addition to what their success rate has been.

You should also ask your potential attorney or firm how they communicate with their clients. Communication is incredibly important. However, many people communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Finding out early that the attorney-client relationship is not going to work is incredibly important since changing attorneys or firms in the middle of litigation is a time consuming and arduous process.

Ask the attorney or firm their rate and if they handle medical malpractice cases on an hourly or contingency basis. Many attorneys prefer contingency fees in personal injury cases which means that you are not obligate to pay an upfront or ongoing expense to the attorney or firm but you are obligated to pay a percentage of your ultimate recovery.

Some notable medical malpractice law decisions from North Carolina

These cases represent awards to plaintiffs in medical malpractice cases in North Carolina. It is important to note results in the past are no guarantee of results in subsequent cases with similar circumstances.

Jarvis v. Mcilveen

The plaintiff, Alan Jarvis, filed a medical malpractice lawsuit on behalf of his deceased wife, Kelly Casstevens Jarvis, against Dr. Peter F. Mcilveen, Total Woman Care and Hugh Chatham Memorial Hospital. The lawsuit was based upon an allegation that a doctor incorrectly performed a cesarean section and that the negligence caused the death of Kelly Jarvis.

Kelly Jarvis and her husband were preparing for the birth of their son, Ethan. On March 9, 2009. They went to the hospital where Dr. Mcilveen delivered Ethan through a C-section. However, during the operation, Dr. Mcilveen cut Kelly Jarvis’ small bowel and closed the incision without properly checking her upper abdomen. Over the next three days, Kelly Jarvis complained about severe abdominal pain and nausea and could not have a bowel movement. A blood test was never ordered and the nursing staff at the hospital released Kelly Jarvis three days after giving birth to Ethan. The release was ordered without Dr. Mcilveen having checked on her. The day after her release, Kelly Jarvis continued to have the same symptoms. Dr. Mcilveen then told Alan Jarvis to take his wife to Hugh Chatham Memorial hospital.

Once she arrived at Hugh Chatham Memorial hospital, she was placed in the intensive care unit, where hospital staff diagnosed her condition as probable intra-abdominal sepsis and acute renal failure. Kelly Jarvis died a day later.

The lawsuit against the hospital was settled out of court, but the lawsuit proceeded against Dr. Mcilveen and Total Woman Care.

A jury awarded $4.5 million to the plaintiff.

Perry v. Alston

Two lawsuits were filed by Bonita Smith Ellis, the Administratrix of the estate of John Henry Perry. The first lawsuit was brought against Onward Healthcare, Inc. and co-defendant Carolane Marsh. The second lawsuit was filed against Dr. Michael Alston.

John Perry was admitted to Northside Behavioral Health Services due to his history of diabetes.

Dr. Alston ordered Perry to receive 60 units of insulin glargine once a day at bedtime and receive insulin lispro four times a day. After receiving the initial dosages of insulin later that day Perry awoke a few days later with a blood sugar level of 27, which resulted in a hypoglycemic episode as a result of an insulin overdose.

At trial, it was found that Carolane Marsh, a nurse for Onward Healthcare, failed to communicate with Dr. Alston that Perry’s blood sugar had dropped to 27.

Perry then went into a diabetic coma and was taken to Roanoke-Chowan Hospital where he would ultimately pass away.

In the medical malpractice lawsuit against Onward and Marsh, it was claimed that Marsh was negligent in her care and treatment of Perry in that she failed to immediately contact Dr. Alston based on Perry’s condition; failed to record any notations in Perry’s medical chart to document his condition; that she created a life-threatening situation as a result of her negligence; failed to take emergency action to prevent Perry from going into a diabetic coma, and took advantage of her position of trust and confidence, thusly a breach of fiduciary duty.

In the medical malpractice lawsuit against Dr. Alston, the major claim was that he was negligent in his care and treatment of Perry, to the point where he failed to properly and adequately supervise Marsh and failed to require her to communicate immediately with him when an emergency or medical crisis arose.

A jury agreed that Perry’s death was proximately caused by the negligence of Marsh and Alston, and that Marsh took advantage of a position of trust and confidence that brought about Perry’s death. An award of $4 million was issued.

Footnotes

[1] N.C. Gen. Stat. § 1-15

[2] N.C. Gen. Stat. § 1-15

[3] N.C. Gen. Stat. § 90-21.11

[4] N.C. Gen. Stat. § 90-21.19

[5] N.C. Gen. Stat. § 1D-25

[6] N.C. Gen. Stat. § 1A-1

[7] North Carolina Rules of Evidence Rule 702(b)(1)

[8] N.C. Gen. Stat. §§ 143-291

[9] N.C. Gen. Stat. § 7A-38.1

[10] N.C. Gen. Stat. § 9-3

[11] N.C. Gen. Stat. § 7B-2602