Statutes 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).

For malpractice actions on behalf of minors, the same rules apply, except the child's action (but not the parents' action for medical expenses) may also be brought any time before the child's nineteenth birthday. N.C. Gen. Stat. § 1-17 (1996). A claimant's insanity tolls the limitation statute. Id.

Contributory or Comparative 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).

Joint and Several Liability

North Carolina imposes joint and several liability on joint tortfeasors. N.C. Gen. Stat. § 1B-1 (1983). 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 (1983). 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 (1983). 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 (1983). The right of contribution may be enforced in a separate action, or in the original action when a judgment has been entered against two or more tortfeasors. N.C. Gen. Stat. § 1B-3 (1983).

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.

Expert Testimony

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).

Damage 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).

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 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).

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 (1991).

Patient Compensation Funds and 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).

Immunities

Except where specifically waived by statute, North Carolina and its various governmental entities maintain sovereign immunity. Town of Hillsborough v. Smith, 10 N.C. App. 70, 178 S.E.2d 18 (1970). The North Carolina Tort Claims Act partially waives the state's immunity and that of its departments, institutions, and agencies. Liability under the act may not exceed $150,000 for an injury to any one person. N.C. Gen. Stat. §§ 143-291 and 143-299.2 (1996).

An action against the state must be filed with the North Carolina Industrial Commission within three years of the date the cause of action accrued, or, in the case of wrongful death, within two years of the date of death. N.C. Gen. Stat. § 143-299 (1996).

State employees, while not personally immune from suit, will be indemnified for any judgments or settlements. N.C. Gen. Stat. § 143-300.6 (1996). However, judgments against employees are limited to the damage cap of the Tort Claims Act. Id. The damage cap amount of the Tort Claims Act is excess over any commercial policy limits the employee has. Id.

The Tort Claims Act does not apply to cities or counties. McBride v. North Carolina State Board of Education, 257 N.C. 152, 125 S.E.2d 393 (1962). Generally, counties and cities maintain their immunity. N.C. Gen. Stat. §§ 153A-11 (1991) and 160A-4 (1994). However, these entities waive their immunity to the extent they carry applicable liability insurance. N.C. Gen. Stat. §§ 153A-435 (1991) and 160A-485 (1994).

Arbitration

The General Assembly has authorized a system of court-ordered mediated settlement conferences for all types of cases to be implemented in every county under rules to be drawn up by the North Carolina Supreme Court. N.C. Gen. Stat. § 7A-38.1 (Supp. 1997). Those rules, which have recently been promulgated, allow the parties to select their own mediator, but require a court order and good cause to dispense with mediation altogether. N.C. Rules, Super. Ct. Mediated Settlement Conf. Rule 1 (1997). The conference is to be held between 120 and 180 days after the answer is filed. N.C. Rules, Super. Ct. Mediated Settlement Conf. Rule 3 (1997).

    

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Revision Date: February 6, 1998