Medical Malpractice in North Carolina
I was at a Continuing Legal Education class the other day on medical malpractice. One speaker, a gray-haired experienced medical malpractice attorney with many years experience was commenting on cases he would not take. “I don’t take cancer cases,” he said, “I don’t take infection cases; I don’t like back surgery cases; I don’t like cases with complicated pre-existing medical record; and I don’t like informed consent cases (the doctor did something other than what was agreed to). Now he was saying this not because he didn’t want to help people with legitimate cases, but because of the difficulty of getting a good result from medical malpractices cases in North Carolina. The types of medical negligence cases he listed were very difficult to prove the negligence, that the injury came from the negligence, and the recovery at trial would pay back the expenses of the lawsuit.
Why are medical negligence cases so hard? Some of it is built into the facts—medicine in general can get complex. Some of it is the nature of negligence law in general, and some of it is because of special rules in North Carolina regarding medical negligence.
First, to establish Medical Malpractice in North Carolina, an injured patient must show that what the doctor or health care provider did or didn’t do and how that was a breach of the “standard of care.” Just because a patient has a bad result, does not mean that the doctor breached a standard of care. In medicine, bad things can happen even if the doctors and nurses did everything they were supposed to do. This is one reason why my friend doesn’t like to take infection cases. Bad infections can and do occur even when the doctor and nurses do everything correctly and within the standard of care.
In North Carolina, the standard of care is what other doctors or health care professionals, with the same type of training and experience, in that community (or a similar community), would have done. To prove what the standard of care is and how the health care provider breached that standard an expert witness must have reviewed the case and be willing to testify that the care did not comply with the applicable standard of care. Only in very few cases, such as those dealing with medical instruments left in the body during surgery, is an expert witness not required. (Presumably because even a lay person could figure out that leaving a scalpel in somebody’s body would be a breach of a standard of care). This type of pre-filing scrutiny is not required in other types of negligence cases.
The expert must be in the same specialty or who performs the procedure at issue in his specialty. For example, an ER nurse can’t testify as to what the standard of care is for an ER doctor; and an ER doctor can’t testify against a neurosurgeon. The expert must also have been in active practice or teaching in the past year. Finally, the expert must show that he is familiar with the local standard of care or the standard of care in a demographically similar area with similar health care facilities.
The purpose behind requiring an expert opinion and the strict requirements on what the qualifications of the expert have to be, is to prevent cases being filed with little or no merit and to guard against “professional experts,” whose only recent experience is testifying against other doctors. Whether or not those extra restrictions on a medical negligence claim are needed or effective is a topic for another post.
Second, after the patient proves that there was a breach of the standard of care, the injured patient has to show that the breach actually caused damage. This is another reason why infection cases are very difficult. Not only can infection occur when the medical professionals follow the standard of care on infection prevention and treatment, but on the times when they don’t follow the standard of care, frequently no infection results. Causation is also why cancer cases are difficult. Usually the fact pattern of a possible cancer case is where a doctor failed to diagnose cancer by misreading or failing to order different medical tests. The patient then discovers the misdiagnosis a few months when she finds out she has and had cancer. The problem is that even if the first doctor had correctly diagnosed cancer a few months earlier, because cancer is difficult to impossible to treat, an expert can’t say that the delay in cancer treatment made any difference.
Third, even if you have a breach of the standard of care that causes damages, a patient considering a medical malpractice action must consider the costs of the lawsuit against the damages and actual injuries from the medical negligence. Even if your attorney takes a medical malpractice suit on a contingency basis (meaning he gets an agreed upon percentage of the judgment or settlement) the expenses are usually billed to the patient. In a non-medical malpractice case, these expenses are usually not large and consist of filing fees, copy charges, etc. But in a medical malpractice case, the experts that both sides are required to have can and do bill at very high per hour rates. Depending on the number of experts and complexity of the case, the expenses for medical malpractice cases can run into tens of thousands of dollars. A medical error that results in some additional treatment and even a longer hospital stay would not be economically feasible to file. You don’t want to spend $30,000 to win $20,000.
Every case is different, and I encourage everyone to consult with an attorney or several attorneys regarding a possible medical malpractice action as soon as you can. Medical Malpractice actions, like all other civil actions, have a statute of limitations that limits the time you have to file a legal action.
–Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.