The Conference Room--Answers to Questions on N.C. Law

The best way to reduce medical malpractice lawsuits

The North Carolina Medical Board has made positive steps in the past few years to better regulate and discipline doctors in the state.  However, a new bill in the North Carolina Senate is making it harder for the Medical Board to regulate licensed medical doctors.  Among other things, it requires a panel, rather than a single board member to start an investigation; requires two experts rather than one to testify for the Board at a hearing; and allows only one non-physician to sit on the hearing committee.  The Medical Board attorney calls the changes “catastrophic” and some say it amounts to "Legislative Malpractice."

While some doctors may view this as the same fight they have against “frivolous malpractice lawsuits,” in my opinion, the more the Medical Board protects the patients of North Carolina and disciplines and removes bad doctors, the less malpractice lawsuits will occur.  When the Board doesn’t do its job, civil law and medical malpractice lawsuits fill the vacuum.  In fact, the Medical Board, if given enough power and a strong mission, is better suited to govern doctors than the court system.  I turn down medical malpractice cases every month, not because there was not bad, or even horrific, medical care, but just because the patient was lucky enough not to be permanently damaged.  The Medical Board can stop bad behavior from bad doctors, before it causes a future patient permanent damage. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

I ran out of gas. I had a flat tire. I didn't have enough money for cab fare. My tux didn't come back from the cleaners. An old friend came in from out of town. Someone stole my car. An earthquake. A terrible flood. Locusts. IT WASN'T MY FAULT!

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The North Carolina Legislature is set to debate a new bill to end contributory negligence and adopt the Uniform Apportionment of Tort Responsibility Act   This is a pretty big deal in North Carolina and will impact a lot of people in years and decades to come and its flying under the radar of most people.  What the bill does is modify the rule of Contributory Negligence.

Contributory Negligence is a defense in a negligence action.  The basic idea is that if it is somebody else’s fault you are hurt; you can recover from that person. To get a little more in depth, Negligence refers to a person's failure to follow a duty of conduct imposed by law. Every person is under a duty to use ordinary care to protect himself and others from injury. Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury.  A person's failure to use ordinary care is negligence.  For example, if you are driving a car down Michigan Ave. at 100mph you were not exercising ordinary care and were negligent.  If you hit somebody because of that, they would have a negligence action against you.

Contributory negligence is the defense that says that if the person hurt was also at fault, she can’t recover.  So if you are speeding and hit somebody who was looking down trying to find a radio station and therefore didn’t see you in time to avoid the accident, you could argue they were also at fault and guilty of contributory negligence and if the jury so found, the person you hit wouldn’t recover anything. 

Defense attorneys, and I’ve been one, therefore could argue before a jury that if the Plaintiff (the injured party and the one bringing the action) was only one percent at fault, and the Defendant (the one answering for the action) was ninety-nine percent at fault, the Plaintiff couldn’t recover.  This sounds harsh and there have been a few work-arounds in North Carolina law that have sprung up over the years to alleviate it somewhat.  In addition, I know that (despite clear instructions from judges NOT to do this) juries will sometime do some deal making when they are trying to reach a unanimous decision, with the pro-Defense jurors voting for liability if the damages are kept down. 

All but four states, North Carolina being one, have gone away from the strict contributory negligence in favor of a modified version, also called “comparative negligence.”  This is what the new bill being debated will do if passed.  Basically, as long as the Plaintiff is less than 50% at fault, she can still recover, with the amount of her recovery lessened by the percentage she is found at fault.  So if a Plaintiff is found one percent at fault, and the jury finds her damages to be $10,000, she still gets $9,900.  Under the current law, she would get $0.  So that is a pretty big change in the way the law has been in North Carolina since Raleigh was a person and not a place.  

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.  

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The Raleigh News and Observer has reported a “man bites dog” story.  A dental patient is complaining that her dentist told her she needed an expensive dental treatment that a later dentist said was unnecessary.  However, it is not the patient suing the dentist, but rather the dentist suing the patient.  The patient made a complaint both with the N.C. Dental Society and the N.C. State Board of Medical Examiners, as well as making complaints in an earlier Troubleshooters column with the newspaper.  About one week later, she found herself the Defendant in a defamation lawsuit.

A legal case for defamation requires a statement (in writing for libel, orally for slander), that is false, and that is communicated to a third party causing damage.  For private persons, it is enough to show that the person making the false statement failed to use ordinary care to determine if the statement was true.  Public persons, such as politicians, must show that the person knew the statement was false or had serious doubts that the statement was true.  Depending on the type of statement, the impact it caused, and the level of intent or maliciousness of the defamer, the person being defamed can recover nominal damages ($1), actual damages (for example, the dentist has alleged that other patients have canceled appointments because of the statements made), and punitive or punishment damages.

While the dentist has as much right as anybody to protect himself legally against false and malicious statements that injure his business, the timing of his suit seems somewhat suspect.  By filing the suit before the patient's complaints were considered by the Dental Board, it looks as though he is trying to  gain leverage over this patient, who may or may not be able to afford legal counsel, to get her to drop the complaints.  He may be particularly concerned as the Dental Board seems to be a bit more aggressive in governing their members than the Medical Board. 

--Bradley A. Coxe is a practicing attorney in Wilmington, NC who specializes in Personal Injury, Medical Malpractice, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.