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Medical Malpractice and Pain Management

In North Carolina, courts have found a nursing facility to be liable for failing to adequately treat a patient’s pain. In Estate of Henry James v. Hillhaven Corp. (NC Super Ct., Jan. 15, 1991), the patient, Henry James, was 74-years-old. He was a retired house painter who had been diagnosed with prostate cancer. His doctor removed the patient’s testicles, but the cancer spread to his leg and spine. James was in very severe pain because of the cancer. He was placed in a nursing home in February 1987.

In the nursing home, the nurses independently made the decision to cut his pain medication, sometimes giving him a mild headache pain reliever, sometimes a morphine placebo, and sometimes nothing at all. The supervisor told the patient’s family that this decision was based on the determination that the patient was a drug addict, although no assessment or diagnosis had been made by the patient’s primary physician. In fact, the primary physician had ordered pain medication to be administered every 3 hours.

As a result of his pain, the patient became irritable and withdrawn and frequently moaned in pain. He died four months later. The patient’s family filed a claim against the nursing home and the trial began in November 1990. The jurors listened to 3 ½ days of testimony before deliberating for an hour and finding that the nursing home had been negligent in failing to provide adequate pain relief for the patient. The jury awarded the family $15 million in damages.

Let’s go back and look at how a plaintiff would bring this type of action. To determine liability in a medical malpractice suit, we must look to North Carolina statute G.S. 90-21.12, which states:

(a)    Except as provided in subsection (b) of this section, in any medical malpractice action as defined in G.S. 90-21.11(2)(a), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the care of such health care provider 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 alleged act giving rise to the cause of action; or in the case of a medical malpractice action as defined in G.S. 90-21.11(2)(b), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the action or inaction of such health care provider was not in accordance with the standards of practice among similar health care providers situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action.

(b)    In any medical malpractice action arising out of the furnishing or the failure to furnish professional services in the treatment of an emergency medical condition, as the term "emergency medical condition" is defined in 42 U.S.C. § 1395dd(e)(1)(A), the claimant must prove a violation of the standards of practice set forth in subsection (a) of this section by clear and convincing evidence.

G.S. 90-21.11(1) provides the definition for “health care provider” which includes

Without limitation, any of the following:

a.     A person who pursuant to the provisions of Chapter 90 of the General Statutes is licensed, or is otherwise registered or certified to engage in the practice of or otherwise performs duties associated with any of the following: 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.

b.     A hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.

c.     Any other person who is legally responsible for the negligence of a person described by sub-subdivision a. of this subdivision, a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.

d.     Any other person acting at the direction or under the supervision of a person described by sub-subdivision a. of this subdivision, a hospital, a nursing home licensed under Chapter 131E of the General Statutes, or an adult care home licensed under Chapter 131D of the General Statutes.

Therefore, a nursing home is included in the definition of health care provider under G.S. 90-21.11(1)(b). A plaintiff bringing a medical malpractice claim must show that the nursing home’s failure to administer pain medication did not meet the standard of care “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 alleged act giving rise to the cause of action.”

As in any medical malpractice action, to show that the nursing home did not meet the standard of care, the plaintiff must first show what the standard of care is. Typically, expert witness testimony is required to evidence this because medical malpractice claims have heightened pleading requirements. Rule 9(j) requires that a complaint alleging medical malpractice be certified by an expert reasonably believed to qualify under Rule 702 that the medical care did not comply with the applicable standard of care, unless the pleading alleges facts establishing negligence under res ipsa loquitur.

If a health care provider has failed to adequately treat your pain, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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