The North Carolina Court of Appeals reversed the decision of the North Carolina Industrial Commission in Ray v. NC Department of Transportation.  The case involved the death of a motorist and her passengers in 2002 when an eroded section of pavement caused her vehicle to go off the roadway, she corrected, and hit an oncoming car head on.  The plaintiff alleged that that NC DOT was negligent in maintaining the roadway and not repairing the eroded section which they knew was dangerous or should have known was a dangerous to motorists.  The Commission dismissed the case based on the public duty doctrine which can be used as a defense by the State of North Carolina from certain tort claims.  Reversing, the Court of Appeals concluded:

“ This case does not involve a failure to inspect or to police, but a failure to repair a defective section of roadway. There is no “hazard created by others” or important discretionary decision which requires the government to be protected under the public duty doctrine.”

Burton Craige wrote an amicus brief on behalf of the North Carolina Advocates for Justice for this case.  The brief can be accessed here.

Categories: Judicial Decisions, Results Tags: Appeals, Briefs, Burton Craige, Case Commentary, Industrial Commission, NC Court of Appeals, NCAJ, North Carolina, Personal Injuries, public duty doctrine, Results

Burton Craige addressed another bill passed in the North Carolina General Assembly this session with his paper entitled “SB 33: The Brave New World of Malpractice Litigation” where he summarizes Senate Bill 33, shows its evolution and addresses some of the possible constitutional challenges that it may face.  He spoke about his paper at a CLE hosted by the North Carolina Advocates for Justice in Raleigh on August 31, 2011.

Introduction:

On July 25, 2011, the North Carolina House of Representatives, by a vote of 74-42, overrode Governor Perdue’s veto of the medical malpractice bill (SB 33). The enactment of SB 33 culminated an intense six-month legislative battle.

When the Act becomes effective on October 1, 2011, a new era of malpractice litigation in North Carolina will begin. Injured patients, who already face formidable barriers, will find it harder to find a lawyer, pursue their claims, and recover adequate compensatory damages. Lawyers and judges will be forced to decipher complex new statutory language.  Courts will confront constitutional challenges to the bill’s most controversial provision, the $500,000 cap on noneconomic damages.

Categories: News of the Firm Tags: Articles, Burton Craige, CLE, Constitutional Law, Legislation, Medical Malpractice, NC Legislature, NCAJ, Personal Injuries, Presentation

Burton Craige authored a paper this month titled “Billed v. Paid: Present, Past, Future”.  Burton presented his paper this month at the North Carolina Advocates for Justice CLE, “Bill v. Paid: Counting the True Cost.”  His paper discusses the way the “Billed v. Paid” issue is handled in other states and how North Carolina’s law has changed over the years.

Introduction:

In June 2011, the North Carolina General Assembly enacted HB 542, titled “Tort Reform for Citizens and Businesses.”  Section 1.1 of HB 542 creates a new rule of evidence (Rule 414) that limits evidence of past medical expenses to “the amounts actually paid to satisfy the bills” and “the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied.”  Section 1.2 amends G.S. § 8-58.1, limiting the plaintiff’s testimony about reasonable medical expenses to the amount “paid or required to be paid in full satisfaction” of the charges. In combination, the new provisions, commonly referred to as “billed v. paid,” will significantly reduce the amount that injured plaintiffs can recover for their medical expenses.  The billed v. paid provisions are effective for all actions “arising on or after” October 1, 2011.

In the past decade, many states have confronted the billed v. paid issue in their appellate courts.  A handful of states have addressed the issue legislatively.  This paper reviews the experience in other jurisdictions, traces the evolution of billed v. paid in North Carolina, and identifies a potential constitutional challenge to the new legislation.

Categories: News of the Firm Tags: Articles, Burton Craige, CLE, Constitutional Law, Damages, Medical Bills, NC Legislature, NCAJ, North Carolina, Personal Injuries, Presentation

Burton Craige recently submitted an amicus brief with attorney Andrew J. Schwaba on behalf of the North Carolina Advocates for Justice in Jenkins v. Hearn Vascular Surgery P.A., addressing the question: “Is a child injured by prenatal medical malpractice barred from bringing a cause of action if the negligence occurred early in the pregnancy?”  A copy of the brief may be viewed here.

Summary of the Brief:  “Decades ago, North Carolina joined nearly every other state in recognizing that survivors of prenatal medical malpractice can bring negligence claims against the doctors responsible for their injuries and birth defects. … Our courts did not make recovery dependent on a fetus’s gestational age at the time of the negligence.

The question of whether North Carolina’s Wrongful Death Act, N.C.G.S. § 28A-18-2 creates a cause of action for the wrongful death of a nonviable fetus has no relation to claims of common law negligence.  When it is reasonably foreseeable that negligent care could injure a woman’s future child, doctors have the duty to avoid negligently placing the future child at risk of injury.  This duty does not depend on whether a fetus has reached the stage of viability.  Accepting a contrary rule would run counter to North Carolina law, break ranks with every other state, and deny a remedy to injured children who will suffer their entire lives because of avoidable medical negligence.”

Categories: News of the Firm Tags: amicus brief, Briefs, Burton Craige, Medical Malpractice, NC Court of Appeals, NCAJ, Negligence, North Carolina, Personal Injuries

A civil rights complaint has been filed in federal court on behalf of Plaintiff Gregory Flynt Taylor against Peter Duane Deaver and other former employees of the North Carolina State Bureau of Investigation seeking damages for his wrongful incarceration.  The complaint may be viewed here.

In April 1993, Mr. Taylor was wrongfully convicted and sentenced to life in prison for a murder two years earlier which he did not commit.  The Defendants worked in the SBI Crime Lab and wrote a deliberately misleading report about evidence collected from the crime scene.  Because this report misrepresented the facts and the findings of the laboratory tests, Mr. Taylor was convicted of a crime he did not commit and spent the next 17 years in prison.  On February 17, 2011 a three-judge panel unanimously found that Mr. Taylor was innocent of the charge of murder and ordered his immediate release.  Mr. Taylor was given a full Pardon of Innocence by Governor Beverly Perdue on May 21, 2010.

Mr. Taylor’s complaint brings claims under the federal constitution, North Carolina Constitution, and North Carolina common law.  Mr. Taylor is represented by Burton Craige and Narendra Ghosh, as well as Spencer Parris and Christopher Olson at Martin & Jones.

Categories: News of the Firm Tags: Burton Craige, Civil Rights, Complaint, Constitutional Law, EDNC, Exoneration, Narendra Ghosh, Negligence, Personal Injuries, Wrongful Conviction, Wrongful Incaceration

The North Carolina Supreme Court has sent a tricky workers’ compensation case back the Industrial Commission for additional fact-finding.  Cardwell v. Jenkins Cleaner involves a plaintiff who was injured when she slipped on some black ice three feet away from the back door to her office.  Our coverage of the Court of Appeals’ split-decision in the case is here.

The Supreme Court, in a short per curiam order, concluded that the Industrial Commission failed to make findings on one of the key factual issues: whether the cement area where plaintiff fell was part of defendant-employer’s premises or part of the parking lot.  Accordingly, the Court remanded the case back to the Commission for additional fact-finding.

Burton Craige assisted with the amicus brief filed by the North Carolina Advocates of Justice in this case.

Categories: Judicial Decisions, News of the Firm Tags: Appeals, Burton Craige, Case Commentary, Compensable Injury, Employer Premises, Industrial Commission, NC Supreme Court, North Carolina Advocates for Justice, Workers' Compensation

The following briefs opposing defendants’ motion to dismiss have recently been filed in Dail, v. City of Goldsboro, et al.: Plaintiff’s First Response Brief and Plaintiff’s Second Response Brief.  Mr. Dail was convicted of a crime he did not commit and subsequently imprisoned for 18 years.  He was exonerated in 2007 when DNA evidence proved his innocence.  This evidence – which was later recovered – had been improperly handled and allegedly destroyed in 1995 by the City of Goldsboro.  The case is now before Judge Boyle in federal court (EDNC). Mr. Dail is represented by Burton Craige and Narendra Ghosh of Patterson Harkavy, as well as Spencer Parris and Christopher Olson at Martin & Jones.  More on the case can be found here.  This a summary of Plaintiff’s argument:

Dail has properly stated cognizable claims for relief arising from his wrongful incarceration. Dail has stated a valid claim for municipal liability under 42 U.S.C. § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978), because Defendants had a policy or practice of failing to properly inventory and safeguard evidence, including the evidence that ultimately exonerated Dail. Defendants’ unconstitutional conduct arbitrarily denied Dail’s liberty interest and resulted in his continued wrongful incarceration. Unlike the plaintiff in District Attorney’s Office for Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009), the principal case upon which Defendants rely, Dail has not impermissibly used § 1983 to seek access to potential evidence, but instead properly invokes § 1983 to redress Defendants’ unconstitutional failure to reasonably maintain evidence.

Dail has also properly brought state law claims for negligence and obstruction of justice, which are not time-barred. Those claims did not accrue until August 27, 2007, when Defendants first notified Dail of the results of the DNA testing, or on August 28, 2007, when Dail was finally released from custody, and thus were timely filed on August 26, 2010. Finally, Dail has stated valid claims under the North Carolina Constitution based on Defendants’ violations of his rights to procedural due process and entitlement to exculpatory evidence.

This case presents weighty issues of constitutional significance in an evolving area of law. Consideration of the merits of the claims asserted in this action should follow development of a full factual record.

Categories: News of the Firm Tags: Briefs, Burton Craige, Civil Rights, Constitutional Law, EDNC, Exoneration, Narendra Ghosh, Negligence, Personal Injuries, Wrongful Conviction, Wrongful Incaceration

In Simmons v. United Mortgage and Loan Investment, LLC, the Fourth Circuit ruled for plaintiffs and reversed the district court in this wage and hour case.  The plaintiffs are Charlotte-based Junior Asset Managers for a mortgage company who were not paid overtime even though they worked more than 40 hours per week.  They brought claims under the Fair Labor Standards Act (FLSA) and North Carolina Wage and Hour Act (NCWHA) based on the failure to pay overtime.  The primary issue is whether the plaintiffs will be able to pursue their case as a collective and class action on behalf the other underpaid workers at the company.  The defendants tried to short-circuit the collective/class action process by tendering a limited settlement offer before other workers could be notified of the case.  The Fourth Circuit rejected this tactic, finding the settlement too indefinite to moot the case.  The Court remanded the case to the trial court to consider plaintiff’s motion to certify the collective action and plaintiffs’ amendments to the NCWHA claims.  Ann Groninger, Burton Craige, and Narendra Ghosh are representing the plaintiffs.

More from the opinion below:

Read more…

Categories: Judicial Decisions, News of the Firm Tags: Ann Groninger, Appeals, Burton Craige, Charlotte, Class Action, Collective Action, Fair Labor Standards Act, FLSA, Fourth Circuit, Labor and Employment, Narendra Ghosh, NCWHA, North Carolina Wage and Hour Act, Overtime, Results, Wage and Hour, Wages

On Thursday, the News and Observer published an opinion piece by Dr. James Bryan and Burton Craige entitled Harmed in the Hospital.  It begins: “In 1999, the Institute of Medicine reported that medical errors in American hospitals cause up to 98,000 deaths and more than 1 million injuries each year. In response to the institute’s report, hospitals in North Carolina and around the country announced initiatives to improve patient safety.  A recent article in The New England Journal of Medicine assessed the efficacy of these initiatives. Looking exclusively at hospitals in North Carolina, the article reported a shockingly high rate of preventable injuries to patients, and little or no improvement over time.”

Check out the whole article.

Categories: General News, News of the Firm Tags: Articles, Burton Craige, Medical Errors, News and Observer, Press

Burton Craige and Leto Copeley are speaking this weekend at the North Carolina Advocates for Justice Mountain Magic Conference.  Burton is leading a panel entitled “Collateral Attack on the Collateral Source Rule.”  He will lead a discussion about the national trend to allow defendants to introduce evidence of the amount actually paid for medical expenses, rather than limiting the evidence to the amount billed.

Leto will be speaking about employment law issues that workers’ compensation practitioners should be aware of, such as the ADA and FMLA.  Wage and hour issues are also important ones to consider.  As this short paper prepared by Leto and Narendra Ghosh states, “Workers’ compensation practitioners should remain vigilant for potential wage and hour violations as they pursue claims for their clients. When getting information on a client’s average weekly wage, for instance, it is important to at least consider whether your client is getting paid fully, including for overtime, under the wage and hour laws.”

Categories: News of the Firm Tags: ADA, Articles, Average Weekly Wage, Burton Craige, FMLA, Labor and Employment, Leto Copeley, Narendra Ghosh, NCAJ, Personal Injuries, Presentation, Wage and Hour, Workers' Compensation