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.
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