Chapter 25 MEDICAL MALPRACTICE

• Jurisdiction: North Carolina

25 MEDICAL MALPRACTICE

A. Definition

A medical malpractice action describes 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 by a health care provider.¹

B. Elements

In order to establish an action for negligence, a plaintiff must show:

(1) The applicable standard of care owed by the defendant to the plaintiff,
(2) A breach of such standard of care by the defendant,
(3) The injuries suffered by the plaintiff were proximately caused by such breach, and
(4) The damages resulting to the plaintiff.²

C. Elements Defined

1. Standard of Care

The plaintiff in a medical malpractice action must establish the relationship of physician to patient as prerequisite to recovery.³

In Mozingo by Thomas v. Pitt County Memorial Hospital, Inc., the North Carolina appeals court clearly sets out when such a duty arises between a doctor and a patient: "When a physician and a patient enter into a consensual physician-patient relationship for the provision of medical services, a duty arises requiring the physician to conform to the statutory standard of care."⁴ In Mozingo, the defendant physician met with the patient and her newborn infant for the first time after the delivery which caused the infant's injuries. The Mozingo court found that the defendant never actually accepted the plaintiffs as patients nor undertook to treat them, and that, therefore, the defendant has no duty to the plaintiff with regard to the medical malpractice against him.⁵ Significantly, the Mozingo court nonetheless found liability on the part of the defendant, who was the on-call physician when the injured infant was born, for providing negligent supervision of the resident physicians.⁶ In this regard, Mozinago arguably widened a physician's common-law duty to provide treatment in hospital settings.⁷

A statutory limitation of liability exists for first aid or emergency treatment of an individual.⁸

2. Breach

In 1975, North Carolina codified its definition of what constitutes a breach of standard of care with regard to medical malpractice cases. Section 90-212.12 provides as follows:

In any 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 shall not be liable for the payment of damages unless the trier of the facts is satisfied 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 at the time of the alleged act giving rise to the cause of action.⁹

The statute's purpose was to conform to existing case law applying "same or similar community" standard of care.¹⁰

In Wall v. Stout, the North Carolina Supreme Court recounts the standard that a physician or other health care worker must meet to avoid liability:

A physician or surgeon who undertakes to render professional services must meet these requirements: (1) He must possess the degree of professional learning, skill and ability which others similarly situated ordinarily possess; (2) He must exercise reasonable care and diligence in the application of his knowledge and skill to the patient's case; and (3) He must use his best judgment in the treatment and care of his patient. . . . If the physician or surgeon lives up to the foregoing requirements he is not civilly liable for the consequences. If he fails in any one particular, and such failure is the proximate cause of injury or damage, he is liable.¹¹

In Wall, the court examined the instructions given by the trial court that a physician is not responsible for damage to the plaintiff resulting from "honest error," and concluded that the instruction was objectionable:

[A]n instruction using the term "honest error" could easily be interpreted by the jury to mean that a physician could not be liable for negligence unless he was somehow dishonest, particularly when the term is not defined with reference to the physician's other obligations to the patient. We therefore hold that because of the potentially misleading and exculpatory import of the term, the phrase "honest error" is inappropriate in an instruction on the liability of a doctor for medical malpractice and should not hereafter be given.¹²

As to the necessity of having expert testimony in a medical malpractice action, the North Carolina appeals court has ruled as follows:

Usually [the question of] what is the standard of care required of a physician or surgeon is one concerning highly specialized knowledge with respect to which a layman can have no reliable information. As to this, both the court and jury must be dependent on expert testimony. Ordinarily there can be no other guide.¹³

Other North Carolina courts have ruled, however, that expert testimony is not always required.¹⁴

The North Carolina legislature has also codified its doctrine of informed consent in N.C.G.S. § 90-21.13, placing limits on when a plaintiff may recover against a health care provider on grounds that informed consent was not given to the physician as follows:

(a) No recovery shall be allowed against any health care provider upon the grounds that the health care treatment was rendered without the informed consent of the patient or the patient's spouse, parent, guardian, nearest relative or other person authorized to give consent for the patient where:

(1) The action of the health care provider in obtaining the consent of the patient or other person authorized to give consent for the patient was 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; and
(2) A reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities; or
(3) A reasonable person, under all the surrounding circumstances, would have undergone such treatment or procedure had he been advised by the health care provider in accordance with the provisions of subdivisions (1) and (2) of this subsection.¹⁵

As to informed consent forms, N.C.G.S. § 90-21.13(b) states:

A consent which is evidenced in writing and which meets the foregoing standards, and which is signed by the patient or other authorized person, shall be presumed to be a valid consent. This presumption, however, may be subject to rebuttal only upon proof that such consent was obtained by fraud, deception or misrepresentation of a material fact.

It does not encompass innocent or negligent misrepresentation.¹⁶ In Liborio v. King, for example, the plaintiff's husband, now deceased, went to the emergency room complaining of nausea and abdominal pain. His on-call doctor prescribed a diagnostic surgical procedure to determine if the patient had gallstones, and the patient signed an informed consent form for the procedure. Unfortunately, the patient died due to complications of the procedure performed by the defendant. At trial, the plaintiff was denied her wishes to instruct the jury that written consent that the patient signed contained a misrepresentation of fact, thus making his consent invalid. The appeals court held that any misrepresentation that may have occurred with regard to the patient would only have been a negligent misrepresentation, which is not covered by N.C.G.S. § 90-21.13(b).¹⁷

3. Injury and Proximate Cause

To establish liability upon the surgeon or physician in malpractice cases, there must be proof of actionable negligence by the defendant, which was the proximate cause of the plaintiff's injury or worsened condition.¹⁸ While the definition of proximate cause cannot be reduced to absolute rules, the following definition guides the courts in assessing whether proximate cause exists: (1) A cause which in natural and continuous sequence; (2) unbroken by any new and independent cause, (3) produced the plaintiff's injuries, (4) without which the injuries would not have occurred, and (5) one from which a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed.¹⁹ Foreseeability of harm to the plaintiff is a required element in the assessment of whether proximate cause exists.²⁰ To prove that an action is foreseeable, a plaintiff is required to prove that in "the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission, or that consequences of a generally injurious nature might have been expected."²¹

D. Defenses

Several defenses are available in negligence actions, including statute of limitations, sovereign immunity, assumption of the risk and contributory negligence. Each defense is discussed below.

1. Statute of Limitations

The plaintiff must bring a medical malpractice action within three years of the occurrence of the last act of the defendant that gives rise to the cause of action.²² Note that the limitations statute sets out a four-year statute of repose (limiting the time in which the plaintiff can bring the action), except in foreign object cases, which have a 10-year statute of repose.²³

2. Sovereign Immunity

The North Carolina Tort Claims Act (NCTCA) governs the doctrine of sovereign immunity in North Carolina, granting immunity that prevents a claim for relief against the State, except where the State has consented or waived its immunity.²⁴ While it is a...