Also, check out this article from the Mecklenburg times on improving safety for cyclists, which includes quotes from Ann.

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.

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.

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.

In Beckles-Palomares v. Logan, the Court addressed the City of Winston-Salem’s defense of governmental immunity, which arose out of an accident where an intoxicated driver struck and killed a seven-year-old boy riding his bicycle.  The plaintiff, the boy’s mother, brought claims against several parties, including the City for failing to keep the particular streets safe in various specific ways.  The Court rejected the City’s defense of immunity, concluding that the public duty doctrine only applies to law enforcement activities, and that the statutes at issue waived immunity.  The Court also rejected its defenses on summary judgment, allowing the plaintiff’s claims against the City to go to a jury.

Finally, in Blackwell v. Hartley, the Court addressed evidence provided by accident reconstruction experts.  In this case, plaintiff Blackwell was driving her car with her son, stopped at an intersection, checked traffic in both directions, entered the intersection, and her car was struck by Hatley’s pick-up truck.  One of the key disputes was whether Hartley was exceeding the speed limit, and whether plaintiff’s expert could testify about Hartley’s speed.  Although a recent law changed this rule, the Court held that for accidents occurring prior to December 1, 2006, an accident reconstruction expert cannot opine on the speed of a vehicle without observing the accident.  The Court also affirmed the dismissal of plaintiff’s claims against the town where the accident took place, concluding that there was no evidence of negligence on the town’s part.

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

• Valerie Johnson — Workers’ Compensation
• Leto Copeley — Workers’ Compensation
• 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.

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.

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.)