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Attorney’s Summary of Relevant North Carolina Law for Medical Malpractice Case

The medical malpractice lawyers at Silverman, Thompson, Slutkin & White, LLC handle medical malpractice cases throughout the mid-Atlantic region. As a service to our colleagues who are considering filing a plaintiff’s action in North Carolina, we are publishing the following on key areas of the law:

A. Statute of Limitations:
Medical malpractice suits must be brought within three years from the date of the last act of the defendant giving rise to the cause of action or within one year of the date when the injury was or should have been discovered, but not more than four years from the date of the last act of defendant giving rise to the cause of action. N.C. Gen. Stat. §§ 1-15 and 1-52(16) (1996). Foreign object cases must be brought within one year from the date of discovery, but no longer than ten years from the date of the occurrence. N.C. Gen. Stat. § 1-15 (1996). Wrongful death actions based on alleged medical malpractice must be brought within the foregoing period or within two years from death, whichever is shorter. N.C. Gen. Stat. § 1-53 (1996).

B. Contributory Negligence:
In North Carolina, a claimant’s contributory negligence bars recovery completely. Miller v. Miller, 273 N.C. 228, 160 S.E.2d 65 (1968). Although a medical malpractice claimant cannot be found contributorily negligent for the behavior that caused him to require treatment, the trier of fact may find that his acts or omissions during or after treatment bar recovery. Cobo v. Raba, 125 N.C. App. 320, 481 S.E.2d 101 (1997). A patient’s unreasonable failure to follow the defendant’s medical advice can be contributory negligence sufficient to bar recovery. Radford v. Norris, 63 N.C. App. 501, 305 S.E.2d 64 (1983).

C. Vicarious Liability:
The reported North Carolina decisions do not appear to have used the doctrine of apparent or ostensible agency to impose liability on hospitals for the negligent acts of their non-employee physicians. In the most relevant case, Hoffman v. Moore Regional Hospital, 114 N.C. App. 248, 441 S.E.2d 567, cert. denied, 336 N.C. 605, 447 S.E.2d 391 (1994), the court recognized the existence of the theory, but declined to use it to hold a hospital liable for the error of a radiologist. It held that there was no detrimental reliance, a necessary element of apparent agency, because there was no evidence plaintiff would have gone to another hospital had she known that the radiologist was an independent contractor.

D. Expert Testimony Requirement:
Medical malpractice claimants must prove a breach of the standard of care by expert testimony, unless the negligence is obvious to a layman. Lowery v. Newton, 52 N.C. App. 234, 278 S.E.2d 566, cert. denied, 304 N.C. 195, 291 S.E.2d 148) (1981); Beaver v. Hancock, 72 N.C. App. 306, 324 S.E.2d 294 (1985). The standard of care to which expert testimony and other evidence must refer is the standard of practice in the community. N.C. Gen. Stat. § 90-21.12 (1990).
For actions filed on or after January 1, 1996, an expert witness must be a licensed health care provider practicing or teaching in the same or similar specialty as the person for whom or against whom testimony is offered. N.C. Gen. Stat. § 8C-1, Rules of Evidence, Rule 702 (Supp. 1996). On motion by either party, the trial court may allow expert testimony from a person not meeting these criteria, but who is otherwise qualified as an expert witness. Id. A complaint alleging medical malpractice shall be dismissed unless it asserts that a health care provider meeting the qualifications described in Rule 702 is willing to testify that the medical care did not meet the applicable standard of care, or it asserts that facts exist establishing negligence under the doctrine of res ipsa loquitur. N.C. Gen. Stat. § 1A-1, Rules of Civ. Pro., Rule 9(j) (Supp. 1997).

E. Damages Caps:
North Carolina generally does not limit the compensatory damages recoverable in medical malpractice actions. However, for actions filed on or after January 1, 1996, punitive damages will be limited to three times compensatory damages or $250,000, whichever is greater. N.C. Gen. Stat. § 1D-25 (1995).

F. No Cap on Attorneys’ Fees:
North Carolina does not limit the fees an attorney may recover in a medical malpractice action. There is no statutory requirement that the court review contingent fee arrangements.

G. Collateral Source Rule:
North Carolina courts prohibit the deduction of collateral benefits from a claimant’s damages. Cates v. Wilson, 321 N.C. 1, 361 S.E.2d 734 (1987).

H. Physician Insurance:
North Carolina does not require physicians to carry liability insurance. The legislature authorized but never activated a Health Care Excess Liability Fund to provide excess insurance, and it has now repealed that legislation. N.C. Gen. Stat. §§ 58-47-1 to 58-47-50 (1994) (repealed 1997).

For further information, please contact the medical malpractice lawyers at STSW for a complimentary consultation.