Medical Negligence

According to the National Academy of Sciences’ Institute of Medicine, preventable medical errors cause between 1,200 and 2,800 deaths each year in North Carolina. Based on those statistics, between 3 and 8 people die every day in North Carolina from medical negligence. These statistics do not include the many more thousands of injuries due to medical negligence each year or those deaths that occur outside the hospital setting. According to one study, around 18,000 North Carolinians are injured by medical mistakes each year. Despite these scary statistics, the number of medical malpractice lawsuits has been relatively stable, with an average of about 620 lawsuits filed each year since 2000.

Clearly, the claim of a “malpractice litigation crisis” (not surprisingly, almost exclusively claimed by doctors’ groups, malpractice insurance companies and politicians in their pockets) is a myth. In fact, given the poor history of state licensing boards in disciplining even repeat offender physicians, medical malpractice lawsuits are important, not only to ensure that injured patients are fairly compensated, but to police an industry that does a poor job of policing itself.

Medical malpractice occurs when a negligent act or omission by a doctor or other health care professional results in some damage or harm to a patient. “Medical malpractice action” is defined by statute as 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 provided by a health care provider.” Medical malpractice includes traditional claims arising out of a health care provider’s negligence in treating a patient, including diagnosis errors, as well other health care-related claims, such as the negligent failure to obtain a patient’s informed consent to a particular treatment or procedure.

Generally, to establish medical negligence, an injured patient must prove the existence of a duty owed by a health care provider (such as a doctor/patient relationship), the applicable standard of care and the health care provider’s deviation from that standard, and a causal connection between the health care provider’s deviation from the standard of care and the patient’s injury.
Establishing the standard of care and a deviation from that standard is one of the most difficult aspects of a medical malpractice claim. In North Carolina, an injured patient has no claim unless he or she can prove that the health care provider’s care and treatment “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 at the time of the alleged act giving rise to the cause of action.” If this sounds difficult and confusing, that’s because it is, thanks in large part to the lobbying power of the medical community.

Proving the standard of care and a breach of that standard is accomplished through an expert witness who is familiar with the applicable standard of care either in the area where the malpractice occurred or a demographically similar area with similar health care facilities. In fact, North Carolina law requires that any lawsuit alleging medical malpractice must include a certification that the medical care has been reviewed by an expert who is willing to testify that the care did not comply with the applicable standard of care. No other claims are subject to such rigorous pre-filing scrutiny, and many scholars question the constitutionality of such special treatment for medical malpractice claims.
In a few cases, such as those dealing with medical instruments left in the body during surgery, an injured patient may be able to invoke the doctrine of “res ipsa loquitur” (latin for “the thing speaks for itself”). Under this doctrine, if the resulting injury is the type that would not have occurred without medical negligence, the jury may infer the health care provider’s negligent conduct without the need for expert testimony on the standard of care.

Medical malpractice can be committed by many different types of health care providers. In a case where a hospital employee, such as a nurse, commits malpractice, the hospital itself may be liable under the doctrine of “respondeat superior.” Under this doctrine, an employer is responsible for the acts and omissions of an employee if the employee was acting in the course and scope of his or her employment when the malpractice occurred. This can be very important in malpractice actions, as it helps ensure that there will be a financially responsible party to compensate an injured patient.

In some cases, usually involving attending physicians working in hospitals, health care providers are considered independent contractors rather than employees. This makes the doctrine of “respondeat superior” inapplicable. Consequently, if the negligent health care provider is an independent contractor and commits malpractice while treating a patient in a hospital, the hospital itself will not be responsible for the doctor’s negligence. Typically, however, doctors granted privileges to practice at a hospital have their own liability insurance policies covering malpractice. The hospital can still be held liable for its own negligence, such as in granting privileges to an unlicensed or incompetent doctor.

If you have been seriously injured by medical negligence, you may have a claim for significant financial compensation. If a patient dies because of malpractice, the estate will have a Wrongful Death claim against the negligent health care provider. Medical malpractice lawsuits, however, are some of the most expensive and difficult claims to litigate. For that reason, if an injury is minor or quickly heals, it sometimes is not in the patient’s best interest to pursue a medical malpractice claim.

At Hodges Coxe Potter & Phillips LLP we have the experience to evaluate your claim and advise you of the best course of action. If you have a medical malpractice claim that merits pursuing in court, we will aggressively devote all our knowledge and resources to help ensure that you are fairly compensated for your injuries or the death of a loved one.


Practicing in this Field

Bradley A. Coxe

Partner, Attorney at Law

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