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.
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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
Six 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:
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.
Categories: News of the Firm
Tags: Burton Craige, Hank Patterson, Jonathan Harkavy, Labor and Employment, Leto Copeley, Medical Malpractice, Michael Okun, Personal Injuries, Recognition, Super Lawyers, Valerie Johnson, Workers' Compensation
On December 8, the North Carolina Court of Appeals published a couple of workers’ compensation decisions. In the first, Heflin v. G.R. Hammonds Roofing, the Court faced an unusual situation involving Florida’s workers’ comp laws and a plaintiff’s efforts to delay her own case. Plaintiff’s husband was killed while working in Florida in 2004. Because the plaintiff’s workers’ comp claim in Florida was initially denied, she pursued a wrongful death claim instead, as allowed under Florida law. To keep that suit going, she did not want to pursue a possible workers’ compensation claim in North Carolina. However, when she tried to stay her case in North Carolina, the Industrial Commission ignored her request. The Court vacated the Commission’s decision and remanded, holding that the plaintiff’s motion for a stay must be addressed, and hinting that it should be granted.
In Van Dyke v. CMI Terex Corp., the Court again dealt with the exclusivity of workers’ compensation claims, i.e. that the availability of workers’ compensation bars personal injury lawsuits against the employer and certain related parties. In this case, the plaintiff brought suit because the decedent had been killed in an explosion at his workplace. At issue was whether a particular defendant was sufficiently related to the employer so that the personal injury case against it was barred. The defendant was the sole shareholder of an LLC (limited liability company), which was a member-manager of the employer, also an LLC. Long story short, because the appealing defendant was not running the employer-company, and was not sued for doing so, the exclusivity of workers’ compensation did not protect it.
Categories: Judicial Decisions
Tags: Case Commentary, Industrial Commission, NC Court of Appeals, Personal Injuries, Workers' Compensation, Wrongful Death
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:
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Categories: General News
Tags: Burton Craige, Defensive Medicine, Medical Malpractice, Personal Injuries, Tort Reform
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
The court issued an unpublished opinion about a pedestrian-vehicle auto accident in Hill v. Thompson this week. In the case, the 15-year-old plaintiff crossed a highway near her home, not at a crosswalk, and was struck by defendants’ vehicle. Defendants argued that plaintiff could not recover at all because she was contributorily negligent (partially at fault) for crossing the street without paying attention. The court agreed that the plaintiff was contributorily negligent, under the rule that “If the road is straight, visibility unobstructed, the weather clear. . . a plaintiff’s failure to see and avoid defendant’s vehicle will consistently be deemed contributory negligence as a matter of law.”
The court disagreed, however, that defendants were entitled to summary judgment because of the last clear chance doctrine. Under the doctrine, even if the plainitff’s negligence puts her in a dangerous position, the defendant can still be liable if he has a clear chance to and unreasonably fails to avoid colliding with the plaitniff. Here, the driver saw the plaintiff near the road as he started down the hill, but didn’t start applying his brakes until the plaintiff was in the highway. The court concluded that a jury should therefore decide if the last clear chance doctrine applied.
Categories: Judicial Decisions
Tags: Car Accident, Case Commentary, Contributory Negligence, Last Clear Chance, NC Court of Appeals, Personal Injuries
A bunch of the new laws passed by the North Carolina legislature earlier this year go into effect today. The News and Observer highlights a few, including the statute of repose law that helps consumers injured by defective products. The N&O also has a more complete list of laws going into effect here.
Categories: General News
Tags: NC Legislature, News and Observer, Personal Injuries, Products Liability
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).
Categories: News of the Firm
Tags: Burton Craige, Medical Malpractice, News and Observer, Personal Injuries, Press Coverage
The Statute of Repose Bill was signed by Governor Perdue on August 5, and becomes effective on October 1, 2009. The text of the bill can be found here.
The Guaranty Fund Bill was signed by Governor Perdue on August 7, and becomes effective immediately. The text of the bill can be found here.
Categories: Legislative Action
Tags: Legislation, North Carolina, Personal Injuries, Products Liability, Structured Settlements, Workers' Compensation
