Medical Malpractice

What Counts As Medical Malpractice?

A malpractice claim has the same four elements as any negligence claim, applied to a professional. The provider owed the patient a duty of care because a treatment relationship existed. The provider breached the standard of care. That breach was a proximate cause of an injury. And the patient suffered damages. Each element must be proved, and the middle two are almost always proved through the testimony of other medical professionals.

The definitions in N.C. Gen. Stat. § 90-21.11 cover a wide group. A health care provider includes people licensed or certified in medicine, surgery, dentistry, pharmacy, nursing, chiropractic, psychology, and related fields, along with hospitals, licensed nursing homes, and adult care homes. A medical malpractice action is a civil action for personal injury or death arising out of furnishing, or failing to furnish, professional services in the performance of health care. Claims that a hospital was negligent in credentialing or supervising a provider are included when they arise from the same facts.

What Is The Standard Of Care In A North Carolina Medical Malpractice Case?

Under N.C. Gen. Stat. § 90-21.12, a provider is not liable unless the patient proves, by the greater weight of the evidence, that the care was not in accordance with the standards of practice among members of the same health care profession with similar training and experience, situated in the same or similar communities, under the same or similar circumstances, at the time of the care. The comparison is to peers in comparable communities, not to the best hospital in the country.

Emergency care is harder to challenge. When the claim arises from treatment of an emergency medical condition, the statute requires the patient to prove the violation of the standard by clear and convincing evidence, a higher burden than in an ordinary civil case. In either setting, the standard and the breach are established by expert witnesses who meet the requirements of N.C. R. Evid. 702.

What Special Rules Apply Before Filing A North Carolina Medical Malpractice Lawsuit?

The most important is the pre-filing expert review. Under N.C. R. Civ. P. 9, subsection (j), a malpractice complaint must be dismissed unless it specifically asserts that the medical care and all available medical records were reviewed by a person reasonably expected to qualify as an expert witness, who is willing to testify that the care did not comply with the applicable standard. The only alternatives are a motion to qualify the reviewer filed with the complaint, or facts establishing negligence under the doctrine of res ipsa loquitur. A judge may extend the filing deadline by up to 120 days to allow time for this review.

The reviewing and testifying experts must fit the evidence rule. For a standard-of-care opinion, the witness must be a licensed provider who practices in the same or a similar specialty as the defendant and who, during the year before the events, devoted a majority of professional time to active clinical practice or to teaching in that field. Experts in malpractice actions may not be paid on a contingency basis.

How Long Do You Have To Sue For Medical Malpractice In North Carolina?

N.C. Gen. Stat. § 1-15(c) starts the clock at the last act of the provider giving rise to the claim, and the basic period is three years. If the injury was not readily apparent and is discovered two or more years after that last act, the patient has one year from discovery, but the statute sets an outer limit: no action may be commenced more than four years from the provider’s last act. A separate rule covers a foreign object left in the body, which allows one year from discovery and never more than ten years. Claims on behalf of minors follow their own provisions in N.C. Gen. Stat. § 1-17.

These periods are shorter and stricter than they look, because the expert review has to be finished before the complaint is filed. A family that waits until the third year to ask questions may not leave enough time to gather records and have them reviewed.

• Basic deadline: three years from the provider’s last act giving rise to the claim.
• Late discovery: one year from discovery, if discovered two or more years after the last act.
• Outer limit: four years from the last act, regardless of discovery.
• Foreign object: one year from discovery, no more than ten years from the last act.

How Does North Carolina Limit Medical Malpractice Damages?

Economic losses such as medical bills and lost income are not capped. Noneconomic damages, which cover pain, suffering, emotional distress, and similar harm, are limited by N.C. Gen. Stat. § 90-21.19 to a base amount of $500,000 that is reset for inflation every third year. The limit does not apply when the patient suffered disfigurement, loss of use of part of the body, permanent injury, or death and the provider’s conduct was reckless, grossly negligent, fraudulent, intentional, or malicious. The jury is not told about the limit; the judge applies it afterward.

One more North Carolina rule applies. North Carolina courts treat contributory negligence as a defense to malpractice just as they do in other negligence cases, so a provider may argue that the patient’s own carelessness, such as ignoring discharge instructions, contributed to the harm. If that defense is proved, it bars recovery.