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.

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.”

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.

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.

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.

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:

Medical negligence isn’t a topic I gave much thought to, until my six-year-old son went to the hospital sick for the first time in his life, and died of oxygen deprivation. Christopher was my only son. His Daddy, my husband, had died of cancer a few years earlier.

In experiencing the death of my husband and son, I have seen the best medical professionals and the worst. I have seen the most caring, and the least.

I buried my husband knowing that medical professionals did everything they could. I buried my son knowing that medical professionals failed him at the most basic level.

Lobbyists for “malpractice reform” claim that lawsuits raise health care costs by inducing doctors to practice “defensive medicine.”  Laurie responded:

We are told that doctors will stop ordering unnecessary tests and procedures if they are freed of the threat of malpractice lawsuits. Both the Government Accounting Office and the Congressional Budget Office have issued reports questioning the pervasiveness of “defensive medicine” and concluding that meddling with the legal system will have a minimal effect on health care costs. When doctors and hospitals have an economic incentive to order additional tests and procedures, we should be skeptical of their claims that they were motivated by the fear of being sued.

One of the lessons of Christopher’s unnecessary death — and my necessary lawsuit — is not that health care providers need to engage in cost-inflating “defensive medicine.”  Instead, it is that doctors and nurses must pay attention, communicate with their colleagues, and adhere to well recognized standards of practice.

In a recent New Yorker article about health care costs, Dr. Atul Gawande confirmed Laurie’s insight about “defensive medicine.” Per capita costs for Medicare patients vary dramatically across the country. To better understand those variations, Dr. Gawande studied McAllen, Texas, a community whose Medicare costs are at the highest end of the spectrum.

Dr. Gawande found that demographic differences (such as race, ethnicity, poverty and age) could not explain why costs are so high in McAllen: per capita Medicare costs in El Paso, a city with virtually the same demographics as McAllen, are much lower.  Nor could the high medical costs in McAllen be blamed on “defensive medicine”: doctors in El Paso and McAllen are governed by the same tort laws, and all benefit from the radical version of “malpractice reform” that Texas adopted in the 1990’s.

After interviewing doctors and hospital administrators in McAllen, and ruling out other possible explanations, Dr. Gawande concluded that the intense entrepreneurial spirit that pervades the McAllen medical community is primarily responsible for the high cost of care.  In short, the doctors who are most highly motivated by profit are the ones who order the most expensive tests and procedures.

As they consider calls for “malpractice reform,” legislators need to remember McAllen, Laurie and Christopher.  Restricting patients’ access to the courts will diminish patient safety, and do nothing to lower health care costs.

(Burton’s post has been cross-posted on the NCAJ’s blog.)

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).

Summary: In Diggs v. Novant Medical, Inc., 177 N.C. App. 290, 628 S.E.2d 851 (2006), the North Carolina Court of Appeals held that a hospital could be liable under apparent agency principles for the acts of an independent contractor physician. The North Carolina appellate courts have not yet addressed the related issue of whether a hospital could be vicariously liable because the non-employee physician was performing the hospital’s non-delegable duty. This paper discusses the law regarding these theories of liability in North Carolina and other jurisdictions, as well as their potential application to a range of medical negligence cases.