— Posts About Medical Malpractice

Burton and Narendra Secure Court of Appeals Win in Medical Malpractice Discovery Dispute

In Hammond v. Saini, __ N.C. App. ___, 748 S.E.2d 585 (2013), the Court of Appeals ruled in favor of Patterson Harkavy’s client, Plaintiff Judy Hammond.  Ms. Hammond suffered severe injuries from an operating room fire while undergoing surgery to remove a possible basal cell carcinoma from her face.  In her subsequent medical malpractice suit, the Defendants refused to produce certain documents addressing the fire and notes made by the hospital’s risk manager following the fire.  The trial court rejected the Defendants’ argument that these items were privileged and granted Ms. Hammond’s motion to compel discovery.  Burton Craige and Narendra Ghosh represented Ms. Hammond on Defendants’ appeal of that decision.

On September 3, a Court of Appeals panel published a unanimous opinion in favor of Ms. Hammond, affirming the order compelling production of the Defendants’ reports, and remanding the issue of whether the risk manager’s notes were protected by the Work Product Doctrine to the trial court.  For more information, read Burton and Narendra’s brief to the Court of Appeals.


Categories: Judicial Decisions, Results Tags: , , , , , , , , ,

Burton Speaks About the New Medical Malpractice Legislation

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.


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.

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Burton Files Amicus Brief with Court of Appeals in Medical Malpractice Case

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.”

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Latest NC Supreme Court Decisions on Medical Malpractice and Employment Law

The North Carolina Supreme Court issued its latest round of decisions on April 15.  Two cases are worthy of note.  In the first, Brown v. Kindred Nursing Centers East, the 4-3 majority ruled that a plaintiff’s medical malpracitce complaint had to be dismissed because the plaintiff did not properly comply with the 120-day extension procedure of Rule 9(j) — the special rule for medical malpractice cases requiring the certification by a physician of the validity of the complaint.   As the dissent pointed out, the majority’s opinion was both wrong on the merits, and especially harsh because the plaintiff filed his original complaint pro se.

In White v. Thompson, the Court (again over a dissent by Justice Hudson) held that the plaintiff did not state a valid claim under the Unfair and Deceptive Trade Practices (UDTP) Act.  The case was between former business partners in a partnership.  The Court concluded that the UDTP does not cover actions in a business’s internal operations.  This continues a line of cases carving out most employment law disputes from the purview of the UDTP Act.

Categories: Judicial Decisions Tags: , , , , , , ,

NC Court of Appeals’ Latest Decisions on Workers’ Compensation and Medical Malpractice

Earlier this month, the North Carolina Court of Appeals issued several notable decisions.  In Soder v. Corvel Corp., the Court effectively reminded workers’ compensation litigants to timely file their appeals to the Industrial Commission.  In this case, after noticing his appeal of the Deputy Commissioner’s decision to the Full Commission, the plaintiff missed his deadline for filing his brief and Form 44 setting out his grounds for appeal.  The Full Commission dismissed the appeal because plaintiff’s brief was ultimately filed 21 days late, and the Court upheld the dismissal.  To make matters worse, plaintiff also failed to preserve his arguments that the Commission should have used its discretion to waive the deadline.

In Hawkins v. SSC Hendersonville Operating Company, the Court again addressed the locality rule for medical malpractice cases — the requirement that the plaintiff must produce an expert witness who can testify to a familiarity with the standards of practice in the same or a similar community as the defendant.  Although many medical fields effectively have a national standard of care, i.e. practices and standards that do not vary with geography, North Carolina remains bound to the old-fashioned locality rule.  In this case, plaintiff sought to establish the standard of care applicable to the care provided to her 86-year-old husband by defendant nursing home through the testimony of three medical experts.  Because these witnesses testified regarding a national standard of care rather than the standards of practice in the community in which defendant is located, the Court directed that judgment be entered for the defendant.

And in Pepper v. Norandal, USA, plaintiff appealed the denial of his workers’ compensation claim that he contracted asbestosis as a result of exposure to asbestos in the course of his employment with Norandal.  Several other co-employees had also brought similar claims, some of which were also decided by the Court on appeal too.  Here, the Industrial Commission found that plaintiff had indeed been exposed to asbestos in his employment, but found that he had not yet developed asbestosis.  The Court affirmed the decision.

Categories: Judicial Decisions Tags: , , , , , , , , , ,

NC Court of Appeals on Line Between Medical Malpractice and Ordinary Negligence

The North Carolina Court of Appeals issued an opinion on February 16, in Deal v. Frye Regional Medical Center, addressing the line between medical malpractice cases and ordinary negligence cases.  There are special requirements on plaintiffs who file malpractice claims, unlike negligence claims, so the line is important.  In this case, the decedent had been admitted and was being cared for because of a heart attack and other problems.  During his stay, however, the nurses failed to conduct a Fall Risk Screen Assessment (“FRSA”) and failed to implement a fall risk safety policy to protect decedent from falling.  Subsequently, the decedent fell out of his hospital bed and fractured his right hip, which required surgery and rehabilitation.  The Court held that the potential negligence here — the failure to conduct the FRSA — was a professional activity of the nurses, involving clinical judgment, and therefore made the claim one of medical malpractice, not just negligence.

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Burton, Hank, Mike, and Jonathan Recognized as North Carolina “Super Lawyers”

Four of Patterson Harkavy’s attorneys have been named North Carolina “Super Lawyers” for 2010 in a recent study by Law & Politics magazine.  The findings are published in the February 2010 edition of the North Carolina Super Lawyers magazine.

Patterson Harkavy’s 2010 North Carolina “Super Lawyers” are:

  • Burton Craige — Personal Injury: Medical Malpractice
  • Hank Patterson — Workers’ Compensation
  • Michael Okun — Labor & Employment Law
  • Jonathan Harkavy — Alternative Dispute Resolution

In addition, Jonathan Harkavy was named to the list of the Top 100 attorneys in North Carolina.

Law & Politics conducts a regional survey of lawyers who have been in practice for at least five years, asking them to nominate the best attorneys they’ve personally observed in action.  In addition, the magazine’s attorney-led research department reviews nominees’ credentials based on a set of evaluation criteria.  To ensure a diverse and well-balanced list, the research staff considers factors such as firm size, practice area and geographic location.

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Burton on Health Care and “Defensive Medicine”

In the current debate about health care reform, we hear a renewed call by medical and insurance lobbyists, politicians, and media pundits for “malpractice reform.”  These ardent reformers do not seek to reduce medical malpractice or improve patient safety.  Instead they seek to block access to the courts for the families of patients who have been injured or killed by medical errors.

A woman in Charlotte recently responded to this misguided campaign.  In an op-ed article published in the Charlotte Observer, Laurie Sanders explained why she has a special interest in the subject:

Read more…

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Burton Craige in Medical Malpractice Article in the N&O

Burton Craige is quoted in this article on medical malpractice in today’s News and Observer.  The issue of medical malpractice had not been a significant part of the debate over comprehensive health care reform, but the issue briefly came to the fore when it was mentioned by President Obama in his health care address to Congress in early September.  As the article demonstrates, however, the number of medical malpractice lawsuits has sharply decreased in recent years.  The main beneficiary of that decrease, though, are the malpractice insurance companies, who apparently have not lowered doctors’ premiums accordingly.

The Washington Post’s Ezra Klein, the go-to source on the great health care debate, has several insightful posts on the medical malpractice issue here, here, and here (from 2006).

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