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

Hank Patterson and Narendra Ghosh will present a paper they co-wrote at the upcoming 18^th Annual Workplace Torts & Workers’ Comp CLE, which is put on by the NCAJ and will be held at the Friday Center in Chapel Hill on Friday December 2, 2011.  Their paper is entitled “Future Medical Treatment: Substance and Procedure for § 97-25.1”.  Hank is also a co-chair of the CLE.

Introduction:

“The provision for extending the two-year time limitation for medical treatment is not often discussed, but it can make a profound difference for claimants who need medical care in the future. This paper discusses the development of this provision in N.C. Gen. Stat. § 97-25.1, as well as the substantive and procedural issues raised by the statute.”

Categories: News of the Firm Tags: Articles, CLE, Future Medical Treatment, Hank Patterson, Medical Compensation, Narendra Ghosh, NCAJ, Presentation, Workers' Compensation

At a recent CLE addressing changes to North Carolina Workers’ Compensation law put on by the North Carolina Advocates for Justice, Hank Patterson presented his paper entitled “Changes to G.S. §97-29: Limitations on Total Disability Benefits – Cap and Credit”.  In the paper Hank summarizes and discusses the amendments to N.C. G.S. §97-29 in House Bill 709, which was signed into law June 24, 2011.

Categories: News of the Firm Tags: Articles, Disability Benefits, Hank Patterson, Legislation, NCAJ, Presentation, Total Disability, Workers' Compensation

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

On Friday, Hank Patterson spoke at the 16th Annual Workers’ Comp Roundtable, a CLE put on by the North Carolina Advocates for Justice.  Hank was part of a panel addressing the proper language for Social Security offset language.

Categories: News of the Firm Tags: Hank Patterson, Health Insurance, NCAJ, Presentation, Social Security, State Health Plan, Workers' Compensation

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

Burton Craige was the Program Chair for today’s CLE on 2010 Ethics Hot Topics, presented by the North Carolina Advocates for Justice.  Topics included the ethical considerations in dealing with child witnesses, attorneys’ websites and advertising, and contacting the employees of companies in a lawsuit.

Categories: News of the Firm Tags: Burton Craige, Ethics, NCAJ, Presentation

Hank Patterson is one of the co-chairs for today’s NCAJ 16th Annual CLE on Workplace Torts and Workers’ Compensation.  Hank is also speaking and presenting a paper entitled Structured Settlement Annuities and the N.C. Life and Health Insurance Guarantee Association.

Summary:   From the perspective of the North Carolina Life and Health Insurance Guaranty Association, Senate Bill 780, enacted by the 2009 General Assembly did not accomplish its basic purpose of expanding coverage to structured settlement annuity payees. We concur. An additional amendment will be required to assure that annuity payees who are residents of North Carolina have the protection of the Guaranty Association.

Categories: News of the Firm Tags: Articles, Hank Patterson, NC Legislature, NCAJ, Presentation, Structured Settlements, Workers' Compensation