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Medical Malpractice or Ordinary Negligence?

When does a claim constitute medical malpractice and when is it ordinary negligence? And why do we care? It’s important because Rule 9(j) of the North Carolina Rules of Civil Procedure requires a heightened pleading for complaints alleging medical malpractice. Specifically, it states that

Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:

(1)    The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;

(2)    The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or

(3)    The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.

Complaints alleging ordinary negligence do not need to be reviewed by an expert witness. So how do we know the difference between medical malpractice and ordinary negligence? First, we look to north carolina statute. G.S 90-21.11(2) defines a “medical malpractice action” as either one of the following:

a.  A civil action for damages for personal injury or death arising out of the furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health care provider.

b.  A civil action against 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 for damages for personal injury or death, when the civil action (i) alleges a breach of administrative or corporate duties to the patient, including, but not limited to, allegations of negligent credentialing or negligent monitoring and supervision and (ii) arises from the same facts or circumstances as a claim under sub-subdivision a. of this subdivision.

The North Carolina Court of Appeals has interpreted the statute language of “professional services” in the case of an individual health care provider, by distinguishing whether the activity involves “specialized knowledge, labor or skill” or whether it is predominantly “a physical or manual activity.” If the activity involves “specialized knowledge, labor or skill” the Court of Appeals has held that the medical malpractice requirements apply, while ordinary negligence law applies to predominantly “physical or manual activity.”

Below is a review of some Court of Appeals cases that have looked at this issue.

Lewis v. Setty (1998): A quadriplegic patient fell and broke his hip because the doctor’s examination table was not lowered after the exam when the patient was transferred back to his wheelchair. The Court of Appeals held that “the removal of the plaintiff from the examination table to the wheelchair did not involve an occupation involving specialized knowledge or skill, as it was predominately a physical or manual activity” and therefore did “not fall into the realm of professional medical services.”

Taylor v. Vencor, Inc. (2000): A resident of a nursing home was required to be under direct supervision while smoking because of her mental and physical problems. The resident was in the smoking area of the nursing home and attempted to light a cigarette. She caught her nightgown on fire and inflicted serious burn injuries on herself, resulting in her death. The Court of Appeals held that “the observance and supervision of the plaintiff, when she smoked in the designated smoking area, did not constitute an occupation involving specialized knowledge or skill. Preventing a patient from dropping a match or a lighted cigarette upon themselves, while in a designated smoking room, does not involve matters of medical science. Such behaviors are properly applied to the standards of ordinary negligence.”

Smith v. Serro (2007): A patient in rehabilitative care went on a bowling outing organized by the rehabilitative program. During the outing, the patient fell and broke his hip. The Court of Appeals held that the decision to permit patient to go on such an outing was medical malpractice not ordinary negligence because “[r]ehabilitative outings constitute part of the treatment prescribed by specialists” and “[d]etermining whether a patient who is known to be at risk of falling should participate in such an activity is precisely the kind of professional judgment to which” the medical malpractice statutes apply.

Sturgill v. Ashe Memorial Hospital, Inc. (2007): A 76-year-old man who was disoriented, unable to walk and suffering from a decreased level of consciousness was admitted to the hospital. About an hour and a half after the staff last checked the patient, the staff found him lying on his floor, unresponsive and having suffered head injuries and various bone fractures. He died a few weeks later. The plaintiff alleged that the injuries were caused by the staff’s failure to use restraints on the patient. The Court of Appeals noted that the hospital’s policy required a written order from a physician or physician’s assistant for the use of restraints. If they were not immediately available, a nurse could initiate the use of restraints "[b]ased on an appropriate assessment of the patient" which included "assessing the patient's medications, orthopedic diseases, neurological status . . . and other medical conditions."” The court held that “[b]ecause the decision to apply restraints is a medical decision requiring clinical judgment and intellectual skill, … it is a professional service. Consequently, plaintiff's complaint is a claim for medical malpractice, thus requiring rule 9(j) certification.”

Allen v. County of Granville (2010): A patient who was disabled was taken to the hospital to treat his seizures. At 3:00 a.m., an employee of the hospital called the patient’s mother and told her that the patient was being discharged and someone needed to pick him up. The mother requested that the hospital not release her son because he "was disabled, had a history of seizures and could not come home on his own." She also told the employee that she would not be able to pick him up for a few hours because of the time of night. The patient was released before the mother arrived at the hospital, and his body was found in a ravine close to the hospital. The Court of Appeals noted that the plaintiff did not “challenge the Medical Center's professional judgement in discharging the decedent” but instead alleged “that the Medical Center failed to supervise a person in its care, despite being on notice that he could not care for himself, and permitted him to leave the premises without being accompanied by a responsible adult.” The court held that “failing to supervise a patient recently treated with seizures until a responsible adult was able to care for him” was a claim of ordinary negligence.

Deal v. Frye Regional Medical Center, Inc.(2010): The patient alleged that nurses did not properly conduct a Fall Risk Screen Assessment, causing the patient to subsequently fall out of bed and break his hip. The Court of Appeals distinguished these facts from a case where nurses were required by hospital policy to raise bedrails for patients. The court noted that the Fall Risk Screen Assessment required nurses to evaluate patients and make a diagnosis and concluded that the facts tended to “show that the acts of which plaintiff complains require "clinical judgment and intellectual skill."”

Horsley v. Halifax Regional Medical Center(2012): A newly admitted patient to a psychiatric unit for a recurring nervous condition was on her way to dinner when she stood against a wall near a nurses’ station and announced she was going to fall. The nurses did not offer the patient a wheelchair, cane or walker. The patient fell and sustained injuries. The Court of Appeals held that “the decision of whether to offer a cane to a patient who has trouble walking is not one that requires specialized skill,” noting that “nothing in the record indicates that the decision to offer a cane to a patient requires a written order or a medical assessment.”

Barrett v. SSC Charlotte Operating Co. (2013): Two nurses attempted to move a patient from his bed to the shower and dropped him in the process. The patient sustained a spinal cord injury as a result. The Court of Appeals held that the injuries described did not result from “the application or misapplication of “specialized knowledge and skill beyond manual dexterity”” and the heightened pleading requirements did not apply.

If you have been injured from medical negligence, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450 to discuss your options.

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