How North Carolina’s New Medical Malpractice Laws Affect How We Handle Cases (Part 1)

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We are living in the new world of “tort reform” (or “tort deform” depending on your perspective) and must adjust.  Many of the new laws have still not been tested even though it is 2014, because the rush to file medical malpractice cases prior to October 1, 2011, created such a logjam that many of those cases were placed on trial calendars in 2014 and even 2015.  Predicting all the ways in which the new statutes will affect medical malpractice cases would require a crystal ball.  This blog entry and subsequent posts will attempt to summarize the biggest changes faced by medical malpractice lawyers and, where possible, propose suggestions for handling medical malpractice cases going forward.

II.  HOW THE NEW LAWS AFFECT CASE SELECTION

Like many of the firms that handle a lot of medical malpractice cases, we have made adjustments in terms of case selection.  When Governor Perdue’s veto of SB 33 was overturned, we scrambled to review and file all viable cases before the October 1, 2011 effective date.  Many other firms did the same.  As a result, caseloads in many firms were larger the last few years.  Firms had to figure out how to prosecute all these new cases.  However, medical malpractice has not ceased.  Patients are still getting injured and losing lives.  Cases are still coming in for review.  So how have the laws affected case selection?

A.  What Kind Of Case Is It?

One of the first questions we must now ask is what kind of medical malpractice case is it?  In other words, does it involve the treatment of an “emergency medical condition?”  Or does it involve negligent credentialing, monitoring or supervision in a nursing home?  It turns out that the answers to these questions are not so clear cut.  In particular, the definition of “emergency medical condition” does not appear restricted to treatment that occurs in the emergency medical department.  And just because treatment occurs in an emergency room, the underlying medical condition which prompted the hospital visit may not be an emergency.  Whether something constitutes an emergency medical condition is crucial because under the new laws, the plaintiff must prove a breach in the standard of care “by clear and convincing evidence.”  Specifically, the changes to the law are set forth below:

SECTION 6. G.S. 90-21.12 reads as rewritten:

§ 90-21.12. Standard of health care.

(a)        Except as provided in subsection (b) of this section, in In any medical malpractice action as defined in G.S. 90-21.11(2)(a), action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant health care provider shall not be liable for the payment of damages unless the trier of the facts fact is satisfied 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), the claimant must prove a violation of the standards of practice set forth in subsection (a) of this section by clear and convincing evidence.”

N.C. Gen. Stat. § 90-21.12 (2011).  G.S. § 90-21.12(a) makes it clear that nursing home cases premised on negligent administration (i.e. credentialing, monitoring, supervision), etc., will have the same evidentiary burden as most other medical malpractice cases.  Further, this provision raises the evidentiary burden for cases involving an “emergency medical condition.”

Matthew Ballew of the Zaytoun Law Firm in Cary, North Carolina, was probably the first lawyer in North Carolina to tackle this issue in his CLE writings and presentations and I consider his work on this issue to be top notch.  Without giving away the playbook for my fellow lawyers who represent patients, we will need to look to other statutes and case law that have interpreted the phrase “emergency medical condition” or similar language.  Factors to look at may be how acute the symptoms were, how serious they were, whether bodily functions or organs have been impaired, whether there is time to transfer the patient to higher care facility, etc.  This lawyer is not aware of any recent case law which has attempted to interpret this language, but I predict battles will be fought on this issue going forward.

Thus, it will be important at the outset to determine if the potential case you are screening may involve an “emergency medical condition,” as that may turn out to be even tougher to prove than a non-emergent case.

My next blog post will discuss the biggest change to North Carolina’s medical malpractice laws – the $500,000 cap on noneconomic damages.

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Attorney Kevin J. Williams at his desk in his Greensboro North Carolina office.
Attorney Kevin J. Williams at his desk in his Greensboro North Carolina office.

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