North Carolina Medical Malpractice Laws

Medical malpractice suits in North Carolina may not result in a better outcome for the patient. This was the discovery pointed out in an article written by professors at Wake Forest University. 

The article collected data from closed claims in the Tar Heel State within a two-year period. It showed that defendants had a winning percentage over claimants in medical malpractice suits. 

Of the 227 claims, seven resulted in the medical provider’s victory at trial, while only one favored the patient. 44.5% of the claims were dismissed, with no payment made to the patient. Only 31% of the cases resulted in the patient being compensated. 

While only a few North Carolinians suffer from malpractice, all have to get medical care at some point. A study suggesting that medical errors are one of the leading causes of death nationwide is cause for concern. Another study estimated that around 251,000 deaths in the country may be attributed to medical errors.

Back on the homefront, it is noteworthy that one of the nationally renowned hospitals in Durham had been embroiled in a sensational 2003 medical malpractice case. The healthcare professionals at Duke University Medical Center committed the error of not checking the blood type before a transplant. 

Given the simplicity of the error in contrast to the complexity of the medical procedure, one can only wonder what other risks lie in the healthcare system. 

This article highlights the importance of understanding the basics of the state’s laws concerning medical malpractice. It contains sections on what qualifies as malpractice, limits to victim compensation, and what it takes to file a lawsuit. 

What Qualifies as Medical Malpractice in North Carolina?

Both medical negligence and medical malpractice are considered "malpractice" in North Carolina.

However, it is important to understand the distinction between these two terms. Doing so may influence the outcome of a medical malpractice case. 

Medical malpractice is defined as failing to carry out a standard level of medical care that results in a patient’s harm. For example, a doctor who chose not to recommend an invasive procedure due to insurance issues caused the patient to suffer injuries due to treatment delays. In this case, the doctor’s decision not to recommend the procedure is a failure to uphold the standard level of care.

On the other hand, medical negligence is a mistake or error by a healthcare practitioner that leads to a patient’s harm. For example, a doctor forgetting to check a patient’s chart and then prescribing a medication the patient is allergic to is considered negligent. 

When delineating the difference between these two scenarios, it is important to recognize the intent of the action. It is considered malpractice when there is a decision not to deliver the standard of care, while negligence can be unintentional. 

Who Can You Sue for Medical Malpractice in North Carolina?

Defendants in a medical malpractice lawsuit can include various types of medical professionals, including:

• Surgeons.

• Physicians.

• Specialists (doctors from fields such as urology, oncology, and OB-GYN).

• Anesthesiologists.

• Psychiatrists.

• Medical Technicians.

• Pharmacists.

• Registered or practical nurses.

• Dentists.

Additionally, entities such as hospitals, primary care clinics, and nursing homes can be sued as well. This can happen in cases where there is a violation of administrative duty towards the patient, such as negligent hiring and supervision. 

Exemptions and Limitations

Medical malpractice laws in North Carolina exempt some persons and entities from general negligence. The laws also limit sovereign immunity—statutes shielding the government from certain types of negligence lawsuits—in some cases. 

County-owned Hospitals

The abovementioned sovereign immunity does not apply to county-owned hospitals because they have a medical rather than a government function. This goes to say that county hospitals can be sued just like any private hospital, according to past court rulings in North Carolina.

Nursing Home Medical Directors

Unless the allegations are for recklessness or gross negligence of duty, nursing home medical directors may not be sued. This does not apply if the injured patient is directly under their medical care. 

Good Samaritan Laws

People—Good Samaritans—who reasonably deliver first-aid care to an injured person during an emergency may be immune from negligence lawsuits. They include civilians and volunteers, such as members of nonprofit clinics, rescue squads, and local health departments.  

Medical Malpractice Liability Insurance Requirements

There are no medical malpractice liability insurance requirements in North Carolina. However, many hospitals and healthcare facilities require doctors to carry such insurance when working in their facilities. 

The insurance works by reimbursing, up to a certain limit, the negligence claim of a patient of the insured healthcare practitioner. The coverage limit ranges from $100,000 to $300,000 and $1 million to $3 million. 

Because many medical practitioners are insured for malpractice, it usually means a patient has to deal with insurance companies to obtain compensation for their injuries. This bit can be tricky and may lead to legal disasters if not handled well. It is important for injured North Carolinians to consult a medical malpractice lawyer before talking to insurance companies.

What Is the Statute of Limitations in North Carolina for Medical Malpractice Cases?

The time required for the injured patient to file a lawsuit is within three years after the malpractice happened. If the injury was not discovered sooner, the patient is given four years since the malpractice happened. 

Exemptions

There are cases where the aforementioned statute of limitations is paused. 

Minors

Minors who are victims of medical malpractice must file the lawsuit before their 10th birthday if the statute of limitations has already expired. 

Any minor judged by the court as abused or neglected must file the lawsuit within three years after the court judgment. A minor in the custody of a county, state, or child placement agency has a one-year deadline to file a lawsuit after being out of such custody. In both cases, the 10th birthday deadline applies if it is later than the specific case deadlines mentioned. 

Wrongful Death

If the malpractice resulted in the patient’s death, a lawsuit can be brought within two years after the death happened. 

Foreign Objects

If there is a foreign object left inside the patient’s body, the lawsuit must be filed within one year after the discovery of the object’s existence. However, there will be a 10-year final deadline to bring the lawsuit after the negligence happened. 

What Do You Need to Prove in a North Carolina Medical Malpractice Case?

To have a successful medical malpractice case in North Carolina, the patient must prove the following:

• The defendant owes the victim a standard duty of care.

• There was a violation of the said duty of medical care.

• The resulting violation led to the patient’s injuries.

• The patient suffered losses.

According to medical malpractice laws in North Carolina, standard medical care is considered the practice set by a community of professionals with similar training, experiences, and circumstances. 

Some of the negligent acts that deviate from the practice are:

• Error in administering the correct anesthesia.

• Failing to promptly diagnose a disease based on the diagnostic tests.

• Giving the wrong type of medication to the patient.

In the digital age, a non-resident practitioner who provides telemedicine services can also be sued. 

Actions Against Failure to Provide Informed Consent

There can be challenges in suing a medical professional on the basis of failure to provide informed consent. This applies in cases when:

• No negligence is involved; the medical professional followed the standard of care.

• The treatment or procedure carries risks any reasonable person would understand.

• Any reasonable person would undergo the same treatment or procedure, even if a medical professional mentioned the risks and hazards.

Res Ipsa Loquitur doctrine

Res Ipsa Loquitur is Latin for “the thing speaks for itself.” When applied in medical malpractice cases, it means the negligence is obvious even to laypersons. An example of this is when a surgeon leaves a foreign object inside the patient’s body. 

The abovementioned example is currently the only case where the Res Ipsa Loquitur doctrine is allowed in North Carolina medical malpractice cases. 

Sympathetic gestures

Under North Carolina statutes, apologies conveyed by a medical provider to the patient cannot be used as proof of liability or culpable action. The same also applies to other sympathetic gestures, such as offering corrective actions to mitigate adverse outcomes of the medical procedure or treatment.

Pre-suit requirements for medical malpractice lawsuits

When the patient files a medical malpractice lawsuit, it must be supported by a certification from a qualified medical practitioner. The certification must state that the practitioner has reviewed the patient's medical records and that the defendant did not adhere to the medical standard. 

There are no specific forms required for use, but the certification must be submitted within the deadline. The court provides the victim with 120 days to furnish the certification if the lawsuit does not include one.

Medical expert qualifications

The medical professional who supports the victim’s claim must adhere to the state’s standards for medical experts. The professional must have a license in North Carolina or from another state and must either:

• Specialize in the same field as the defendant.

• Specialize in a field relevant to the case.

Additionally, the medical professional must also have experience in either of the following scenarios during the year prior to the malpractice event:

• An active clinical practice that is similar to the defendant’s field.

• A teaching capacity in the same field as the defendant’s.

Compliance with the minute details of these rules can make or break a medical malpractice case. For example, a North Carolina court dismissed a case in 2016, citing failure to comply with the certification requirement as the reason. The certification did not mention that the medical expert belongs to the same specialization as the defendant.

Voluntary Arbitration

North Carolina statutes encourage the use of arbitration before or after the lawsuit is filed. To bring the case to arbitration, both parties must consent to it. 

Should both parties choose not to use arbitration, they must submit a declaration in court before the discovery conference commences. 

How Much Can You Sue For Medical Malpractice in North Carolina?

There is no clear-cut way of telling how much a medical malpractice claim in North Carolina is worth. It depends mostly on factors such as the soundness of the evidence, the extent of the injuries, and whether the case goes to trial. 

For reference, a 25-year study of medical malpractice claims nationwide found that there is higher compensation for catastrophic injuries compared to cases resulting in death. These injuries include brain damage, quadriplegia, and those requiring a lifetime of care. 

A medical malpractice lawyer in North Carolina can help you assess the strength of your case and damages—the legal term for compensation.

Generally, determining the worth of a case starts with quantifying the types of damages that can be recovered. 

Types of Damages

In most cases, there are two types of compensatory damages: economic and non-economic damages. 

• Economic damages are given for losses that are quantifiable, such as medical bills, lost wages, and rehabilitation.

• Non-economic damages are losses that are not easily quantifiable. These include pain and suffering, reputational damage, and emotional anguish.   

Calculating damages

Economic damages are computed based on evidence such as medical receipts, payslips, and billing statements. 

It is more difficult to put a value on non-economic damages. The multiplier and the per diem methods are used to calculate non-economic damages. 

The multiplier method uses a seriousness factor that ranges from 1.5 to 5, which is then multiplied by the total economic damages. The resulting amount becomes non-economic damages.

The per diem, or per day, method is calculated by agreeing on a set amount of compensation. It is then multiplied by how many days you have suffered. 

Limits on damages

There are limits to how much you can recover for non-economic damages, but none for economic damages. The limit, in most cases, is $500,000 and is adjusted for annual inflation rates. However, there is no limit for cases involving gross negligence, malicious intent, and fraud resulting in death, permanent disability, or disfigurement. 

Punitive damages

This is a type of compensation designed to punish the defendant and is only given at a verdict. Because of this, punitive damages are rarely recovered in medical malpractice cases. 

These are capped at three times the total compensatory damages, or $250,000, whichever is higher.

Negligence System

The state follows a pure contributory negligence doctrine for medical malpractice cases. The doctrine’s main essence has been mostly intact since it was first applied by the North Carolina Supreme Court in an 1869 case. Under such a doctrine, a claimant is barred from obtaining compensation if they contributed even slightly to their injuries. 

This means that even if the defendant is found to be 99% at fault and you contributed 1% to your injuries, you will not receive compensation. 

A real-world example of this is that of a patient who sued a doctor for delayed diagnosis. The doctor was able to take down the suit by presenting that the patient did not keep the appointments and did not report worsening symptoms. 

 However, this law has some nuances, including considering the sequence of negligence events. 

Case in point: a North Carolina court allowed a patient to recover compensation in a surgery negligence case. This comes even though the doctor argued that the patient did not follow post-surgery recovery advice. The court deemed it so because the doctor’s negligence in surgery came first. The patient's contributory fault, however, reduced the total amount of their compensation. 

Multiple Defendants/Joint Liability

When there are multiple defendants in a malpractice claim, each of them is required to pay their share of liability. Additionally, one defendant may be forced to pay the total damages. However, the defendant can file an action to compel other defendants to pay their share.

Methods of Obtaining Compensation

North Carolina courts require both parties in a medical malpractice lawsuit to attend the Mediated Settlement Conference Program. This encourages litigants to resolve the case in a less costly, less stressful, and more efficient manner. In the settlement, the defendant will agree to pay the damage amount settled during the negotiations. 

Few cases make it through trial. If the judge or jury rules in favor of the claimant, the defendant has to pay the damage awards. 

Fewer cases are resolved through arbitration. If the claimant wins the case, a damage award will be conferred upon them and shall not exceed $1 million.

How Much Does It Cost to Pursue a Medical Malpractice Case in North Carolina?

If a medical malpractice law firm in North Carolina offers complimentary consultations and contingency fees, it should not cost the patient out-of-pocket money. Under contingency fee arrangements, the legal team can only be paid once the client receives compensation. 

The contingency fee is usually a percentage—somewhere around 33%—of the total compensation. Note that while many states place a cap on lawyers’ fees, North Carolina does not. 

Furthermore, many of these law firms advance the costs of litigation. This means they will shoulder other case-related costs such as expert witness fees, deposition expenses, and court filing fees. Included in these expenses are payments for securing medical records, photocopying documents, and traveling witnesses. 

Legal Resources for Medical Malpractice Victims in North Carolina

Suffering from injuries and having to navigate the legal system can be a trying time for anyone. For this reason, a list of legal resources is compiled below to aid medical malpractice victims in dealing with various health and legal concerns. 

North Carolina Judicial Branch

The North Carolina court system has issued a help guide online on a variety of court matters. These include guidelines on going to court, disability and language access, and fee schedules. Note that the court cannot provide any legal advice. For more information on court location and services, visit the North Carolina Judicial Branch’s Contact page. 

Duke Law Health Justice Clinic

Cancer or HIV-positive patients can reach out to the Duke Law Health Justice Clinic if they have diagnosis-related legal problems. They can call 919-613-7169 for further assistance or send mail to the address: Box 90360, Durham, North Carolina 27708-0360. 

Triangle Area Guide to Low-Cost Health Care and Legal Services Related to Health Needs

This is a comprehensive guide for individuals with medical care and legal needs. Students of the University of North Carolina School of Law compiled it. The guide contains information on community resources for low-cost or free mental health, legal aid, and healthcare services. 

North Carolina Medical Board

Patients who are victims of a physician’s or physician assistant’s misconduct or negligence can seek help from the North Carolina Medical Board. Those who are contemplating filing a complaint can use the decision guide. Those who have problems obtaining patient records after 30 days of submitting a formal request to the medical professional can submit a complaint. For more details, contact the Complaint Department at 1-800-253-9653 (ext. 501).

North Carolina State Bar

The State Bar has issued a guide for claimants of medical malpractice. The guide includes information on various legal directories suited for different legal needs. It helps claimants understand their rights and responsibilities as clients. Clients can learn from the guide on how to choose a lawyer and note the important things to consider before hiring one.