Marjorie Locklear, who was 75 at the time in 2012, had a heart attack and needed vascular surgery. During her surgery at Southeastern Regional Medical Center, Locklear fell from the operating table. Her body contained surgical tools at the time and she endured a concussion, trouble with vision, a jaw injury and bruising. Since the accident, she has experienced reoccurring nightmares relating to the incident. Locklear filed suits against Dr. Cummings, who was the surgeon, Southeastern Regional Medical Center in Lumberton, and the Duke University Health System, who was responsible for management at the heart center. The suits sought damages for negligence in addition to punitive damages. Her initial suits were dismissed by a county court but appealed to the higher court.
The dismissal was said to be the result of improper service of notification in accordance with North Carolina law. Her attorney used a civilian process server; however, the law states that service (in this instance) must be executed by the Sheriff's Department. The Appeals Court determined that only the suits against Dr. Cummings and the Duke Health System would be eligible to continue. The plaintiff argued that these cases were actually based on ordinary negligence, rather than medical malpractice; therefore, the technicalities that led to the dismissals would not be applicable. Locklear's lawyers explained that it was pure negligence that allowed her to fall off the table, not a matter of substandard skilled medical treatment.
The North Carolina Statute provides information to determine if this case is one of medical malpractice or common law negligence. Medical malpractice actions are based on damages associated with failures in performing professional services by a medical care provider. The courts further explained that medical malpractice involves errors in matters requiring medical judgment or intellectually-based knowledge. Professional services were interpreted by the court as those based on vocation, employment or profession which involve applying skills and knowledge in executing mental tasks. The courts define ordinary negligence as claims based on actions or inaction which do not involve medical judgment or assessment, rather actions which are labor intensive or manual.
The suit outlined a number of ways that Dr. Cummings was negligent including:
- A failure in judgment and skill of a professional nature
- Failure in regulating the Plaintiff's body during the procedure
- Failure in monitoring the Plaintiff's status
- Allowing for distractions to divert his attention
- Failure in arranging his physical position relative to the Plaintiff's body
- Improper staff supervision and other similar explanations
The Court of Appeals used a panel of three judges who ruled 2-1 that Locklear's claim was based on ordinary negligence. Judge Berger, who dissented, felt that actions involved in handling someone's body in surgery relate to medical treatment, thus the case is based on medical malpractice. Since the ruling was not unanimous, the case may be subject to a North Carolina Supreme Court review.