North Carolina Medical Malpractice Summary

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In 2011, North Carolina enacted tort reform legislation commonly referred to as Senate Bill 33 (“SB 33”). N.C. Sess. Law 2011-400. The effective date of this legislation is October 1, 2011, but some provisions apply only to causes of action arising on or after that date, while others, including a cap on non-economic damages discussed below under Damage Caps, apply to all actions commenced on or after that date. A severability clause provides that if the damage cap is held to be unconstitutional the remainder of the act is not affected. Some provisions of SB 33 do not fall into any of the categories discussed below. In tort actions seeking $150,000 or more, the court must order separate trials on liability and damages unless it finds good cause for a single trial. N.C. Gen. Stat. § 1A-1, Rules of Civ. Pro., Rule 42(b)(3) (Westlaw 2012). In actions arising out of emergency treatment on or after October 1, 2011, the claimant must prove violations of the standard of care by “clear and convincing evidence,” a burden of proof more rigorous than the usual preponderance of the evidence. N.C. Gen. Stat. § 90-21.12(b) (Westlaw 2012).

Statutes of Limitations

A medical malpractice action 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 (Westlaw 2012). If based on a foreign object left in the body, it must be brought within one year from the date of discovery, but not more than ten years from the date of the occurrence. Id. A wrongful death actions based on medical malpractice must be brought within two years from death or the time for bringing an action for bodily injury, whichever is shorter. N.C. Gen. Stat. § 1-53 (Westlaw 2012)Udzinski v. Lovin, 358 N.C. 534, 537, 597 S.E.2d 703, 706 (2004).

The same rules apply to a malpractice action on behalf of a minor, except that such an action may also be brought any time before the child’s tenth birthday. N.C. Gen. Stat. § 1-17 (Westlaw 2012) (as amended by SB 33, nineteenth birthday for actions commenced before October 1, 2011). A claimant’s insanity tolls the statute of limitations. Id.

Contributory or Comparative Negligence

In North Carolina, a claimant’s contributory negligence bars recovery completely. Cobo v. Raba, 347 N.C. 541, 545, 495 S.E.2d 362, 365 (1998). A patient’s unreasonable failure to follow the defendant’s medical advice may be contributory negligence sufficient to bar recovery. Id. at 546, 495 S.E.2d at 366McGill v. French, 333 N.C. 209, 220, 424 S.E.2d 108, 114-15 (1993).

Joint and Several Liability

North Carolina imposes joint and several liability on joint tortfeasors. Young v. Baltimore & Ohio Railroad, 266 N.C. 458, 465, 146 S.E.2d 441, 446 (1966)N.C. Gen. Stat. § 1B-1 (Westlaw 2012). Thus, any joint tortfeasor against whom judgment is entered is liable to the claimant for the entire amount of the judgment, regardless of the tortfeasor’s share of fault.

Contribution

The right of contribution attaches when two or more people are jointly and severally liable for injury or wrongful death and one pays more than his pro rata share. N.C. Gen. Stat. § 1B-1 (Westlaw 2012). Fault is not considered in determining a tortfeasor’s liability in contribution; rather, the collective liability of the tortfeasors is considered a “single share,” which is to be divided equally among the tortfeasors. N.C. Gen. Stat. § 1B-2 (Westlaw 2012). A tortfeasor who enters into a settlement agreement is not entitled to contribution from any tortfeasor whose liability was not extinguished by the settlement or for any settlement in excess of what is reasonable. N.C. Gen. Stat. § 1B-1 (Westlaw 2012). The right of contribution may be enforced in a separate action or by motion in the original action. N.C. Gen. Stat. § 1B-3 (Westlaw 2012).

Vicarious Liability

A hospital may be vicariously liable for the acts of a physician under the doctrine of apparent agency if the hospital holds itself out as providing medical services, the patient is looking to the hospital rather than the doctor to perform those services, and the patient has a reasonable belief that the services would be rendered by the hospital. The hospital may avoid liability by providing notice that an independent contractor is providing treatment. Diggs v. Novant Health, Inc., 177 N.C. App. 290, 307, 628 S.E.2d 851, 862 (2006), cert. denied, 648 S.E.2d 209 (N.C. 2007); see also 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) (recognizing the theory but finding against plaintiff on the reliance element). North Carolina law also supports a finding of vicarious liability based on actual agency when a hospital exercises a sufficient degree of control over the physician, even if the parties structure the relationship as one of independent contractor. Willoughby v. Wilkins, 65 N.C. App. 626, 633-35, 310 S.E.2d 90, 95-96 (1983).

Expert Testimony

A complaint alleging medical malpractice shall be dismissed unless it either (1) asserts that a qualified expert has reviewed the available records and is willing to testify that the medical care did not comply with the applicable standard of care, or (2) 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) (Westlaw 2012). The expert must be a licensed health care provider practicing or teaching in the same or similar specialty as the person for or against whom testimony is to be offered. N.C. Gen. Stat. § 8C-1, Rules of Evidence, Rule 702 (Westlaw 2012). A physician can also testify with respect to support staff, and on motion by either party, the trial court may allow expert testimony from a person not meeting these criteria, but who is otherwise qualified. Id. It is ordinarily necessary to prove a breach of the standard of care by expert testimony, unless the negligence is obvious to a layman. Clark v. Perry, 114 N.C. App. 297, 306, 442 S.E.2d 57, 62 (1994); 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 that of members of the same profession in similar communities. N.C. Gen. Stat. § 90-21.12 (Westlaw 2012).

Damage Caps

North Carolina has a $500,000 cap on non-economic damages in medical malpractice cases filed on or after October 1, 2011. N.C. Gen. Stat. § 90-21.19 (Westlaw 2012) (as amended by SB 33). The cap applies in two ways: the total amount of non-economic damages awarded to any plaintiff against all defendants is limited to $500,000, and the total awarded to all plaintiffs against any one defendant for care arising out of the same professional services is limited to $500,000. The act does not state whether related defendants share a single cap. Beginning in 2014, the $500,000 cap will be modified every three years based on changes in the consumer price index. Id. There is an exception to the damage cap for cases of disfigurement, loss of use of part of the body, permanent injury, or death, if the acts or failures that caused the injury were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional, or with malice. Thus the exception requires both a high level of severity and a heightened level of culpability. The new law also clarifies that lawsuits against hospitals and nursing homes based on theories of corporate liability like negligent credentialing or negligent supervision are medical malpractice actions subject to the damage cap. N.C. Gen. Stat. § 90-21.11(2) (Westlaw 2012).

Punitive damages against a defendant are limited to three times compensatory damages or $250,000, whichever is greater. N.C. Gen. Stat. § 1D-25 (Westlaw 2012). The Supreme Court has upheld the constitutionality of his statute. Rhyne v. K-Mart Corp., 358 N.C. 160, 594 S.E.2d 1 (2004).

Statutory 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.

Periodic Payments

North Carolina does not require the periodic payment of damage awards in medical malpractice actions.

Collateral Source Rule

North Carolina law prohibits the reduction of a claimant’s recovery by amounts received from a collateral source, such as insurance or government benefits. Cates v. Wilson, 321 N.C. 1, 5-6, 361 S.E.2d 734, 737 (1987). In actions commenced on or after October 1, 2011, evidence of past medical expenses is limited to the amount actually paid to satisfy medical bills rather than the face amount of the bills. N.C. Gen. Stat. § 8-58.1 (Westlaw 2012).

Pre-Judgment Interest

In tort actions compensatory damages bear interest at the legal rate of eight percent from the date the action was commenced until the date the judgment is satisfied. N.C. Gen. Stat. §§ 24-1 and 24-5 (Westlaw 2012).

Patient Compensation Funds and Physician Insurance

North Carolina does not have a patient compensation fund, and it does not by statute require licensed physicians to carry professional liability insurance.

Immunities

The North Carolina Tort Claims Act partially waives the state’s sovereign immunity and that of its departments, institutions, and agencies. Liability under the act may not exceed $1,000,000 for an injury to any one person from any one occurrence. N.C. Gen. Stat. §§ 143-291 and 143-299.2 (Westlaw 2012). State employees, when not personally immune from suit, will be indemnified for any judgments or settlements. N.C. Gen. Stat. § 143-300.6 (Westlaw 2012). However, judgments against employees are limited to the damage cap of the Tort Claims Act, and coverage afforded an employee is excess is over any commercial policy limits the employee has. Id.

The operation of a public hospital by a city or county is considered to be a proprietary rather than a governmental function, and such hospitals are therefore liable in tort for the negligence of their employees just like private corporations. Sides v. Cabarrus Memorial Hospital, 287 N.C. 14, 25-26, 213 S.E.2d 297, 304 (1975). In addition, cities and counties waive their immunity to the extent they carry applicable liability insurance. N.C. Gen. Stat. §§ 153A-435 and 160A-485 (Westlaw 2012).

Arbitration

North Carolina has a system of court-ordered mediated settlement conferences under rules drawn up by the North Carolina Supreme Court. N.C. Gen. Stat. § 7A-38.1 (Westlaw 2012). Those rules allow the parties to select their own mediator, to agree on another form of settlement procedure (like arbitration or summary trial), or to dispense with mediation altogether for good cause shown. N.C. Rules, Super. Ct. Mediated Settlement Conf. Rule 1 (Westlaw 2012).

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Revision Date: April 1, 2012