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NC Medical Malpractice

Medical malpractice is something that unfortunately seems to occur more often than it should in hospitals and doctors’ offices and other healthcare facilities. Although ultimately it is negligence on behalf of a healthcare facility or health professional, having a successful medical malpractice claim is not as easy as many assume. First, it must be proved that a healthcare professional was negligent. To prove negligence, the patient must be able to prove that healthcare professional did or failed to do something that a reasonably prudent professional would or would not have done, depending on the circumstances. Malpractice laws do not require healthcare professionals to be perfect, but they are required to act within the standard of care that is expected of such healthcare professionals who have similar training and experience and in the same or similar communities.

Next, the patient must be able to prove that his injuries were a proximate cause of the negligence. Thus, by only proving that the healthcare professional was negligent towards a patient is not enough for a successful malpractice claim. Proximate cause is when the injuries that the patient sustains are foreseeable. Generally, the connection between the patient’s injuries and the healthcare professional’s negligence is proved by testimony from an expert witness.

Next, the patient must be able to show that he sustained actual injuries. This is the part that can be a little tricky to prove. Not all injuries present themselves right away. Also, some injuries may be disguised as side effects immediately after a procedure has been performed on a patient. It is important to keep track of everything and to keep an accurate timeline because there is a timeframe that a plaintiff must file a medical malpractice claim. Generally, the statute of limitations is three years for medical malpractice in North Carolina, and two years for wrongful death. There are other factors that can affect these statutes of limitations, and that is why it is very important to have attorney representation for such claims and for specific legal advice.

It seems simple to prove a medical malpractice case initially, right? But, it’s not so simple. To prove negligence, the attorney must prove that the healthcare professional owed a duty to the patient, the duty was breached, the breach of the duty was the cause of the patients’ injuries and that the patient sustained actual injuries. Although this seems clear cut, there have been many instances where on its face it appears to be a solid malpractice claim, but ultimately the plaintiff does not make a recovery. Thus, therefore it is critical to seek representation from an experienced plaintiffs’ attorney. Under North Carolina law, there must be expert review to show the causal link between a healthcare professional’s negligence and a patient’s injuries. This aspect alone can cause difficulty in pursuing a medical malpractice claim.

In Moore v. Pitt County Memorial Hospital, the plaintiff filed a negligence, res ipsa loquitur and failure to warn case against Pitt County Memorial Hospital and the Red Cross. 139 F. Supp. 2d 712, 713 (E.D.N.C. 2001). The plaintiff alleged that she received a blood transfusion at Pitt County Memorial Hospital with blood received from the Red Cross, and ultimately contracted Hepatitis C. Id. The case was originally filed in state court, but the Red Cross had to case removed to federal court. Id.

Pitt County Memorial Hospital sought a dismissal of the claim because the plaintiff did not assert that her medical care had been reviewed by person who was reasonably expected to qualify as an expert witness, as required by Rule 9(j) of the North Carolina Rules of Civil Procedure for medical malpractice claims. Id. Rule 9(j) states:

Medical malpractice.--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.

N.C. R. Civ. P.9.

In response to the defendant’s motion to dismiss, the plaintiff asserted that her claim did not allege a medical malpractice action because it was against a hospital. Id. The court disagreed with the plaintiff’s argument and defined a medical malpractice action as: “a civil action for damages arising out of furnishing or failure to furnish professional services in the performance of medical, dental, or other health care by a health provider”. Id. The court pointed out that unlike a previous case against a blood bank, the North Carolina legislature specifically included hospitals within the definition of “health care providers”. Id.

The plaintiff also argued that her claims alleged ordinary negligence as opposed to medical malpractice. The court also disagreed with this argument. Id. The allegations against Pitt County Memorial Hospital specifically alleged negligent performance of profession services and failure to warn. Id. In her complaint, the plaintiff argued that at the time she received the blood transfusion, the hospital had the means and methods available to screen blood for infectious viruses, yet failed to do so. Id. Thus, the screening of blood for infectious viruses fell within the definition of “professional services” under North Carolina General Statute § 90-21 because it required knowledge and skills and the negligence would not have been identifiable by the average lay person. Id.

Finally, as for the plaintiff’s res ipsa loquitur claim, the court determined that her allegation failed as a matter of law because she did not allege that Pitt County Memorial Hospital had exclusive control of the blood. Id. Thus, the defendant hospital’s motion to dismiss the plaintiff’s claim was granted, and the claims asserted against the Red Cross remained. Id. at 714.

This case is illustrative of how complex a medical malpractice claim can be, even when it appears that there is a valid claim and there has been a clear error on behalf of a healthcare professional or provider. If you feel as if you have been a victim of medical malpractice, do not allow your claim to be dismissed for a lack of thoroughness and for failing to make the proper assertions as required by North Carolina medical malpractice law. Call Rosensteel Fleishman today to schedule a consultation with one of our highly skilled and experienced attorneys.

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