Burton Craige has published an article entitled “The Road to Comparative Fault in North Carolina” in this month’s issue of The Litigator, the regular publication of the North Carolina Bar Association’s Litigation Section.

Summary:  North Carolina is one of only five jurisdictions that retain the antiquated doctrine of contributory negligence. Here, as in Alabama, Maryland, Virginia and the District of Columbia, a plaintiff whose negligence makes the slightest contribution to his injury is barred from recovering any damages against the tortfeasor. The other 46 states, either by judicial decision or by statute, have adopted some form of comparative fault, allocating damages based on the degree of fault among the plaintiff and the defendants.

In May 2009, the North Carolina House of Representatives passed a bill that would abolish contributory negligence, adopt a system of modified comparative fault, and modify joint and several liability.  Modeled on the Uniform Apportionment of Tort Responsibility Act (UATRA), the bill attracted bipartisan sponsorship and support.  After the sponsors agreed to several last-minute amendments that favored defendants, the bill (HB 813) passed by a margin of 67-50, overcoming strong opposition from business and insurance interests.

In the 2010 session, the North Carolina Senate will consider HB 813.  If the bill passes the Senate, it will end the long, harsh regime of contributory negligence, and bring North Carolina tort law into the modern era.  This article discusses the provisions of UATRA, the amendments adopted in the House, and the principal objections to the bill.

Categories: News of the Firm Tags: Articles, Burton Craige, Comparative Fault, Contributory Negligence, NC Legislature, NCBA, Negligence, Personal Injuries, UATRA

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.

Categories: Judicial Decisions Tags: Case Commentary, Medical Malpractice, NC Court of Appeals, Negligence, Personal Injuries

Last week, the North Carolina Court of Appeals published four opinions concerns concerning workers’ compensation and personal injury cases.  In Berardi v. Craven County Schools, the Court considered and described the Industrial Commission’s new process for expedited medical motions, which speed up resolution of medical treatment disputes in workers’ compensation cases.  At issue was whether the employer could appeal a decision of the Commission granting one such motion.  The Court held that it could not because the order was interlocutory, i.e. it did not resolve all issues, the usual prerequisite for appeals.

In Freeman v. Rothrock, the North Carolina Supreme Court had sent the case back to the Court of Appeals after reversing it and rejecting the judicial creation of a bar to recovery of worker’s compensation benefits when an employee made misrepresentations at the time of hiring about his physical condition.  On remand, the Court addressed the other appealed issues from the Commission, and affirmed the Commission’s conclusions that the plaintiff is entitled to ongoing total disability benefits and that the employer is not entitled to a credit based on previous clinchers (settlements) with the plaintiff.

Read more…

Categories: Judicial Decisions Tags: Appeals, Bicycle Accidents, Car Accident, Case Commentary, Clinchers, Disability Benefits, Governmental Immunity, Industrial Commission, Medical Motions, Negligence, Personal Injuries, Workers' Compensation

The North Carolina Supreme Court denied the defendants’ petition for discretionary review (PDR) in Fulford v. Jenkins today, among its long list of orders.  This is a wrongful death action based on the negligence of the Duplin County Department of Social Services and its employees.  The defendants lost on the issue governmental immunity, appealed, lost unimously in the Court of Appeals, and then sought review from the Supreme Court.   Burton Craige and Narendra Ghosh assisted with the plaintiff’s representation at the Supreme Court, opposing the PDR.  The Court’s denial of the PDR means that the case will return to the trial court where it can proceed.

Categories: Judicial Decisions, Results Tags: Appeals, Burton Craige, Civil Rights, Narendra Ghosh, NC Supreme Court, Negligence, Personal Injuries, Results, Wrongful Death

Burton Craige and Narendra Ghosh spoke at the North Carolina Advocates for Justice 2009 CLE on Medical Malpractice.  Burton spoke on the topic of “Defense Counsel’s Communications with Treating Physicians,” and together they spoke on the topic of “What’s the Next Step in Applying Agency Principles to Hospitals.”  They presented a paper entitled What’s the Next Step in Applying Agency Principles to Hospitals?

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.

Categories: General News Tags: Agency Law, Articles, Burton Craige, Medical Malpractice, Narendra Ghosh, NCAJ, Negligence, Personal Injuries, Presentation