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

Read What You Sign. Except Doctors.

One of the first bits of free advice you’ll get from an attorney, is to read and understand before you sign a document. Even where the clause is buried on page 8 of fine print; or where there was a change from an earlier draft; or where the person was told something different; or where the person was subject to high-pressure sales tactics; or even where the person couldn’t read or write; under North Carolina law you are found to have read and understood the entire document. However, in a recent case, the North Carolina Court of Appeals found that did not apply to a doctor.

The case involved a surgery patient who had developed complications. As a result, his doctor gave him a prescription for Total Parenteral Nutrition, but the prescription was missing a vital nutrient, which caused the patient to develop a permanent disability. The prescriptions are required to be signed by a doctor under federal law; however, the doctor in this case signed at least 49 prescriptions prepared by a dietician without ever having read any of them. The doctor’s expert witnesses testified that the standard of care did not require the doctor to actually read the prescriptions he was signing. The jury agreed and the doctor was found not negligent. The Court of Appeals let the decision by the jury stand although indicated they were “disturbed by the assertion that as a matter of practice and standard of care, doctors need not read what they are required by law to sign.

The general advice to read before signing is still the rule for 99.9% of the population and circumstances, although the next time you are given a prescription, you might want to bring up the question to your doctor.

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

Medical Records

Under North Carolina law, a person’s medical records are property of the healthcare provider who created them. However, a patient has rights to get copies and/or inspect the records of his medical care. The patient may need them to provide to a different doctor or healthcare provider to help with additional medical care. Legal actions such as medical malpractice or personal injury also may require an inspection of the medical records to determine damages, pre-existing conditions, or causes of injury. Medical malpractice actions in North Carolina require an expert review all the medical records available before even starting a lawsuit. The federal Health Information Portability and Accountability Act (HIPAA) gives patients the right to obtain a copy of their medical records from any medical provider, with a few exceptions. According to HIPAA, you may request

• Your own medical records;
• Someone else's records if you are a designated representative with power of attorney or or otherwise written permission to act as their representative in accessing records;
• Someone else's records if you are their legal guardian;
• Your children's medical records, unless the child has consented to medical care and parental consent is not required under NC law, the child gets medical care at the direction of a court, or the parent agrees that the minor and the medical provider have a confidential relationship;
• Records of deceased persons in certain circumstances. If you are the personal representative of an estate -- either designated by a will or appointed by a court to settle a deceased person's affairs -- HIPAA gives you access to the deceased's medical records. In addition, if you are related to a deceased person and certain information in that person's medical file relates to your own health, HIPAA lets you access that information.

HIPAA gives patients the right to get copies of all of their medical records except for psychotherapy notes, information the provider is gathering and compiling for lawsuits, and medical information that the provider believes could reasonably endanger your life, your physical safety, or the safety of another person. If the provider denies your request for medical records, it should provide you with a denial letter giving the reason. In such cases, you may be able to appeal the denial. In addition, the North Carolina Medical Board provides that a physician has a duty to release a copy of the patient’s medical record to the patient or a representative of the patient even for purposes of personal injury or medical malpractice investigations and lawsuits. 

HIPAA requires medical providers to provide copies of medical records within 30–60 days of your request. The North Carolina Medical Board requires the records to be provided in a “timely manner.”

In personal injury and social security cases, the health care provider is limited by statute as to the amount they can charge for copies. Currently, the maximum fee for each request shall be seventy-five cents (75¢) per page for the first 25 pages, fifty cents (50¢) per page for pages 26 through 100, and twenty-five cents (25¢) for each page in excess of 100 pages, provided that the health care provider may impose a minimum fee of up to ten dollars ($10.00), inclusive of copying costs. However, if they do charge for medical records, they waive any right they have for a lien on any proceeds from any lawsuit. For records requests for other reasons, the healthcare provider can charge a “reasonable cost-based fee.”

When it comes to identifying which medical records you want, you can be general or specific. Sometimes, patients want their entire medical file. But if you’ve seen the doctor over a long period of time and don't want to pay for copies of every immunization and preventative visit for the last 20 years, it might make sense to specify which part of the record you want. Some hospital will provide a “digest” which includes the most important parts of a record including operative notes, admission and discharge reports, lab reports and radiology reports. Even if you request a full record, you usually will not get copies of actual X-rays or CT scans. You have to request those specifically. You can also narrow your request by specifying records that cover treatment over a certain time period. Billing information is usually kept separate and is not considered part of the medical record, so if you want your bills, you need to specifically request that.

Once you get your medical records, you may notice they include reports from third-party providers, like specialists or radiologists. The documents from the third-party provider are what your doctor received, but they may not constitute all the medical records that the third-party provider's office has on you. If you need more information from the third-party provider, make a separate medical record request to that provider.

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

 

Florida gets one right.

The Supreme Court of Florida rejected the state legislature's cap on medical malpractice damages. Essentially they found that the cap discriminated unfairly. A person who was injured by the negligent fault of a doctor or health care provider would have the amount of their actual damages, as determined by a jury, limited. A person damaged by the negligence of a layperson with the same damages would not. I've written before about caps and medical malpractice limits, and go into some length on the statistics on my firm website,  but let me sum up my opinions as follows:

1.    Statistics show that doctors do not leave states without medical malpractice caps. The Florida court points out that the statistics show the opposite.

2.     Medical malpractice lawsuits are a fraction of the cases of actual medical malpractice, even ones causing death. Reduce medical malpractice and any "problem" with medical malpractice lawsuits will fix themselves.

3.    Medical malpractice lawsuits are resolved by a jury. That jury can and does include people who can award or limit damages based on a large number of factors that are specific to that particular case, including people who believe plaintiffs file cases without any merit and injured patients get a windfall of money for their injuries. The jury is the most powerful democracy in the United States. One vote out of 12 on a jury will have much more impact on a person that one vote out of millions in a general election. Arbitrarily limiting the maximum amount a jury can award makes as much sense as mandating a minimum amount they must award.

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

 

With those lawyers, it would take a Christmas Miracle...

Last Sunday, the kids and I went to the Thalian Association’s production of  "Miracle on 34th Street" a musical adapted from the 1947 movie starring Maureen O’Hara, Edmund Gwenn, and a very young Natalie Wood. My theater review:  Wonderful entertainment, terrific cast, and catchy songs, with a kind of rare “Christmas Special” vibe that you used to get from holiday TV shows and movies before you could get any video you thought of on DVD, Netflix or YouTube. Take a few kids and enjoy the show in a lovely old theater in downtown Wilmington. The final run is December 13-16 and tickets are going fast.

As a theater goer and sometime amateur actor, I loved the show.  As an attorney I found some of the legal strategy employed by the attorney for Santa Claus, and his opponent, while entertaining, somewhat questionable.

 

Spoilers below (If that is possible from a story almost 70 years old).

 

 

 

A dignified older gentlemen is indignant to find that the person assigned to play Santa in the annual Macy's Thanksgiving Day Parade is drunk. When he complains to event director Doris Walker she persuades the man, who says his name is Kris Kringle, to take his place. He does such a fine job that he is hired to be the Santa for Macy's flagship New York City store on 34th Street. Gradually, the employees of Macy’s come to the realization that Mr. Kringle believes he is, in fact, the real Santa Claus.

Pursuant to Macy’s policy, a Mr. Sawyer gives Kris a "psychological evaluation". Kris seems to pass the test but antagonizes Sawyer by questioning Sawyer's own psychological health while insisting he is the one, the only, Santa Claus. Sawyer then has Kris committed. In his first case, an ex-Marine, Fred Gailey, agrees to defend Mr. Kringle in a hearing before Judge Henry X. Harper of the New York Supreme Court in the commitment hearing.

At the hearing, District Attorney Thomas Mara gets Kris to assert that he is in fact Santa Claus and rests his case, believing he has prima facie proven his point. Fred stuns the court by arguing that Kris is not insane because he actually is Santa Claus – and Fred will prove it. Based on testimony of R.H. Macy (and a nice song and dance number) the court recognizes the existence of Santa Claus. The DA then demands that Mr. Gailey prove that Mr. Kringle is Santa Claus. Mr. Gailey asserts and the DA stipulates that the U.S. Post Office is competent and efficient authority for determining the identify of a person. With that, bags of letters addressed to Kris Kringle as Santa Claus swamp the court. Declining to dispute the Post Office's "legal recognition" of Kris as Santa Claus, Harper dismisses the case.

First, keep in mind that Sawyer is trying to get Kris into inpatient, involuntary commitment. That is not, and shouldn’t be, an easy task as there are huge civil rights issues involved in restraining somebody against their will. Therefore the statutes and the law are specific and narrowly tailored. Second, Let’s assume that the statutes for involuntary commitment in New York in 1947 are the same as North Carolina in 2012.  Under such a law, In order for Mr. Sawyer to have Kris initially involuntarily committed, he would have to sign an affidavit (statement under oath to a notary) that Kris was mentally ill or dangerous to himself or dangerous to others. When a person swears out such an affidavit, and a clerk or magistrate finds probable cause to believe it is the truth, they can issue an order for involuntary commitment. The law enforcement officer would then take the alleged incompetent into custody and provide him an examination by a physician or psychologist without unnecessary delay. Since Mr. Sawyer was apparently a licensed psychologist, he appeared to skip this step. Then, within 10 days of the person being taken into custody (or about 2 scenes later in theater time), the hearing before a district court judge is required. To support an order for involuntary, inpatient commitment, the judge must find by clear, cogent, and convincing evidence that the person is mentally ill and dangerous to himself or others. The judge is also required to record his findings of fact in the order, giving a justification for his decision.

In “Miracle,” the DA, apparently phoning it in with an “open and shut” case right before Christmas, calls the wrong witness. Instead of calling Mr. Sawyer to testify that Kris is mentally ill and dangerous to himself or others, he calls Kris.

District Attorney: What is your name?
Kris Kringle: Kris Kringle.
District Attorney: Where do you live?
Kris Kringle: That's what this hearing will decide.
Judge Martin Group: A very sound answer, Mister Kringle.
District Attorney: Do you really believe that you're Santa Claus?
Kris Kringle: Of course.
District Attorney: [long pause] The state rests, your honor.

Now, without any psychiatric testimony or even documented medical records, I don’t see how it’s possible Judge Group could find findings of fact to support that Kris was mentally ill and dangerous to himself or others. So, because of the screw-up of the District Attorney, all Gailey has to do is ask the court to dismiss the case and they can skip right to the curtain call, but Gailey keeps going. There is a temptation in all trials to keep trying the case, keep talking, and to be too clever, and it often backfires. If he wanted to keep arguing, or if the DA had the sense to put Sawyer on the stand, Gailey could have called Kris’s psychiatrist from the Brooks Memorial Home for the Aged (who was sitting back in the chorus) during the hearing. The doctor had appeared in an earlier scene and specifically said Kris “may be delusional, but it's a delusion for good.” I think it can be implied from that dialogue that the doctor would not find Kris dangerous to himself or others, and the judge would find more weight with a doctor who had been treating Kris than some quack who worked for a department store and gave the guy some form test.

But Gailey decides to play on hard mode. Rather than win the case he has, he decides he wants to prove that Kris is sane by proving that he is actually the one and only Santa Claus, despite the fact that is not the question before the court and is not what he needs to prove to win for his client. He even shifts the burden of proof. Rather than the DA having to prove Kris is mentally ill and dangerous to himself or others, Gailey accepts that he has to prove that his client is Santa Claus. Even if it is true, it’s a lot harder to prove, even if Jingle and Jangle Bells come into court to testify. Luckily for Gailey, he stumbles on to the Post Office defense and Judge Group (relived he didn’t have to rule against Santa with an election coming up) quickly rules for Kris before his attorney can start talking again. 

So we get a happy ending and looking back, I suppose I am guilty in this blog post of doing what Gailey did. Maybe what Gailey was really trying to do was help Kris give everybody the Christmas spirit. What he did and what the production of “Miracle on 34^th Street” had to do was to entertain a packed house of people, not prove a legal point. And in that, they succeeded brilliantly.

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

Qualifications for an Expert in North Carolina Medical Malpractice cases

    Medical malpractice cases in North Carolina, like cases with complex or specialized facts, require expert testimony. Unlike other types of cases, North Carolina has strict rules on the person suing a doctor regarding what experts are allowed to testify and what types of opinions they can give. The following is some of the information I share with possible expert witnesses to confirm that any opinion that they may have can be admissible in a medical malpractice trial.

I.    Qualifications of Expert    

    The North Carolina Rules of Evidence have certain requirements for expert testimony regarding an appropriate standard of care in a medical malpractice action. Rule 702(b)(1) of the North Carolina Rules of Evidence requires that standard of care expert witnesses either specialize in the same specialty as the defendant or specialize in a similar specialty that includes the performance of the procedure that is the subject of the complaint and have prior experience treating similar patients. Furthermore, Rule 702(b)(2) requires that during the year immediately preceding the date of the occurrence forming the basis of the complaint, an expert witness must have devoted a majority of his professional time to either active clinical practice of the same health profession as the defendant (and same or similar specialty if the defendant is a specialist), or the instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health care profession as the defendant (and same or similar specialty if the defendant is a specialist).

    Rule 702(d) further provides that a physician who qualifies as an expert and who by reason of active clinical practice or instruction of students has knowledge of the applicable standard of care for nurses, nurse practitioners, etc., or other medical support staff, may give expert testimony with respect to the standard of care of which he is knowledgeable for nurses, nurse practitioners, etc., or other medical support staff.

II.    Qualifications for an Expert Opinion on Breach of Standard of Care    

    In North Carolina, any health care provider who undertakes to render professional services must meet these requirements: (1) to use his best judgment in the treatment and care of his patient; (2) to use reasonable care and diligence in the application of his knowledge and skill to his patient's care; and (3) to provide health care in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time the health care is rendered. The third requirement above is codified in § 90-21.12 of the North Carolina General Statutes.

    The "same or similar community" requirement in § 90-21.12 has resulted in confusion in some malpractice cases. The legislative intent in adopting this requirement was to avoid a national, or even statewide, standard of care for North Carolina health care providers, to allow for the consideration of the effect that factors such as funding, facilities, and equipment may have on the standard of care for various communities. (Even though almost all doctors I talk with insist that the standard of care should be the same all over the country). In order for an expert testify, to supplement his own experience in the local community, various pieces of information should be supplied, including demographic information on the county, local hospitals, local nursing homes, and doctors; accreditation information on the hospital including what level of services they provide; Medicare information on local health care providers; and North Carolina Medical Board information on doctors that were involved in the case, whether or not there is a question as to their breach of the standard of care. I encourage them to discuss the standard of care or general health care information with their colleagues in the area, and to talk with any national organizations or board specializations that they share with any of the local health care providers. The information is used not only to educate a doctor regarding the general and medical community of where the questioned medical malpractice took place, but also to allow the doctor to compare various communities where they may have practiced. In this manner, they can testify as to a breach in the standard of care in the community where it occurred, even if most of their experience is elsewhere. If, after reviewing this information, they are unable to articulate the standard of care in my community, no matter what their other qualifications may be, they are not allowed to testify in North Carolina.       

III.    Qualifications of Expert Opinion on proximate cause (possible v. probable)

    In addition to expert testimony as to a breach of the standard of care, the expert must testify that the breach was a proximate cause of the injuries or death. In North Carolina, this must be done by a qualified expert. Note that the breach need only be "a" cause, not "the" cause. The opinion of the expert regarding causation must be to a reasonable degree of medical certainty. This need not be 100% certainty. The expert need only testify as to what is "probable," or more likely than not, as opposed to merely "possible." "Probable" is defined as "likely to happen," American Heritage College Dictionary 1090 (3d ed.1993), and as "[h]aving more evidence for than against; ··· likely," Black's Law Dictionary 1201 (6th ed.1990). By contrast, "possible" has been defined as "that [which] may or may not occur ···," Webster's Third New International Dictionary 1771 (3d ed.1968), and as "[c]apable of existing, happening, being, becoming or coming to pass; feasible ···," Black's Law Dictionary 1166 (6th ed.1990).

IV.    Conclusion    

    The first thing that needs to be done in a possible medical malpractice situation, is to make sure that the expert you are asking to formulate an opinion as to whether or not medical malpractice has occurred, is to ensure that the expert is qualified: (1) to render an opinion as to the appropriate standard of care for a health care provider practicing within his specialty or area of expertise in the local community; and (2) to testify as an expert witness in North Carolina under Rule 702 of the North Carolina Rules of Evidence. Under Rule 9(j) of the North Carolina Rules of Civil Procedure, a qualified opinion is needed prior to filing the lawsuit, therefore it is vitally important that the doctor understand the requirements for experts and expert opinions in North Carolina, and are able to render her opinion under these rules. An opinion that does not conform to these rules will be thrown out, and as a result, an entire case could be dismissed without ever getting into the merits of the case.

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

HIPAA

With our increasingly interconnected world and the rise of identity theft and other similar invasions of privacy, more and more laws and regulations are being enacted to bolster traditional common law and wall off private information from the public. One such body of law is contained in The Health Insurance Portability and Accountability Act. More commonly known as “HIPAA,” this law was passed by Congress in 1996 to set a national standard for electronic transfers of health data. At the same time, Congress saw the need to address growing public concern about privacy and security of personal health data. The task of writing rules on privacy eventually fell to the U.S. Department of Health and Human Services (HHS). After several modifications, DHHS issued the HIPAA Privacy Rule.

HIPAA set a national standard for the privacy of medical records. A state can enact greater privacy rights, but HIPAA sets the minimum that must be followed. Under HIPAA, the patient has a right to their medical records, although the provider can bill for the cost of copying them.

When you first go to a doctor or other medical provider, they should provide you with a notice of privacy practices that give you more information about how your medical information is shared. Including in that is your right to an accounting of disclosure of your health information, how to file a complaint, and how to ask for special confidential communications (for example telephone calls to your home rather than work for communications regarding your health care and treatment).

Exceptions to the protection of HIPAA are information used for your treatment, drug companies who are issuing recalls or warnings of medications, business associates (for example, if your doctor provides your information to an account for medical billing purposes) The health care provider is supposed to have a contract that ensures that the business associate properly handle the information, but is not required to check and supervise.

The patient can also authorize the health care provider release the information to a third-party. I usually run into this exception when dealing with personal injury and medical malpractice lawsuits. Most people understand that if they are trying to recover for medical bills and injury, they have to show their medical records and bills to the jury. However, the plaintiff is required to turn over medical information before a trial to a defendant if he asks for it in discovery, even for past medical records, if it could possibly lead to discoverable evidence. One common defense is that the injury the plaintiff complains of did not occur due to the defendant’s negligence, but rather, due to a pre-existing condition. Therefore, evidence of a plaintiff’s pre-existing medical condition, including her past medical records, is discoverable. This is thought of as a voluntary disclosure since a plaintiff is not required to file a lawsuit.

If a medical provider releases your information in violation of HIPAA, you can not file a lawsuit. There is no “private right of action” with HIPAA. What you can do, is first complain to the medical provider’s privacy officer. If you are not satisfied, you can file a complaint with the U.S. Department of Health and Human Services. You have 180 days to file such a complaint although the HHS can extend it at need. The HHS can levy fines against the health care provider, but you won’t get the money like you would in a private right of action lawsuit.

While some states may have additional privacy rights that would be actionable in a civil lawsuit (and therefore an aggrieved plaintiff could recover damages), North Carolina is not one of them. However, in North Carolina, a HIPAA violation can be used as the basis for the tort of Negligent Infliction of Emotional Distress. This means that the plaintiff can file a suit and recover damages. However, an NIED suit would have to show more than just a violation of HIPAA. The plaintiff would have to show “severe emotional distress” which North Carolina courts have held to be a diagnosable condition. If the disclosure of your private health records didn’t cause you to have psychiatric or other counseling, then you probably won’t have a case. In addition, the suit would fall under the more strict medical malpractice rules so there will be additional hoops to jump through, including finding an expert in the same specialty to testify as to why the HIPAA violation was a breach of the standard of care.  

--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. 

Curb Your Enthusiasm

 The other night, I was watching an old “Curb Your Enthusiasm” episode on DVD. The episode was a typical half hour of misunderstandings and wild coincidences. Larry’s friend and business agent, Jeff is in the hospital for some surgery to correct his snoring. For several funny reasons I won’t go into here, Larry inadvertently infuriates Jeff’s doctor who then goes to the operating room and shaves Jeff’s head. Jeff then wakes up bald and fails to close a million dollar deal with Ben Stiller. Jeff is convinced that the reason he lost the deal was because he was bald. He shouts to Larry “I’ll sue!”

So that got me thinking. Is this a real case? Is it medical malpractice? What would I do if Jeff walked into my office? Could this be one of those urban legend “frivolous lawsuits?”

First, is this even a medical malpractice case? Shaving somebody’s head doesn’t sound like a medical case and isn’t even negligence if the doctor did it intentionally. However, because shaving is a normal part of some surgeries (but not a snoring surgery) it would be a “medical treatment” and therefore would fall under medical malpractice law.

Now that we know its medical malpractice, we have to see if there is a breach of the standard of care. It would seem obvious that shaving somebody’s head that had nothing to do with the actual surgery and maybe it is. Nevertheless, under North Carolina law, an expert doctor has to give that opinion, even before any lawsuit is filed. That expert has to be in the same or similar specialty and be familiar with the community or a similar sized community.

Contrast that requirement with a normal lawsuit. If Jeff had fallen asleep in a barber chair who had then shaved his head, he could file a lawsuit the next day and argue to a jury that this was not with his permission or not what a reasonable person would do. No need to get an expert barber to testify.

Assuming we have retained an expert doctor to review the medical records and solemnly pronounce a breach of the standard of care that caused the damage (baldness) the real question is one of damages. Unless Ben Stiller will admit that he didn’t hire Jeff because he was bald, the damages will be limited to a few weeks of embarrassment and baldness, and probably the extra medical bills that Jeff had to pay for the failed operation. This is one more factor against medical malpractice. Again if this was ordinary negligence of a barber, just these damages may be worth a lawsuit. But, with the cost of medical experts, I don’t see a jury giving Jeff enough money to make a medical malpractice case worthwhile. I never want to take a case where it costs my client more than what he could win.

As silly as this is, it does show one of the biggest limitations of medical malpractice cases and why cries for tort reform from medical malpractice insurance companies are overblown. Medical mistakes happen all the time, but unless there is serious and permanent injury, lawsuits are simply too expensive to be used to rectify medical negligence.

--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. 

My Not-So-Hero, Zero

There has b
een a lot of justifiable backlash over “zero tolerance” policies for weapons at schools. The tale of the cub scout proud of his pocket knife with fork and spoon has prompted many people to cry out “where is the common sense of these school officials?” My practice really isn’t geared to this type of litigation (although I know attorneys who do) but I’d like to make the connection between these zero tolerance policies and some types of tort reform.

Zero tolerance for weapons in schools sounds like a great idea. Don’t let anybody wiggle out of the rule because of their race, wealth, Mom is the principal, or anything else. In practice though it requires a third-grader to be suspended because her grandmother sent a birthday cake to school, and a knife to cut the cake for the teacher. With zero tolerance, there is no room for common sense. It is a robotic and undemocratic rule of law.

Caps on medical malpractice damages or pain and suffering damages is also a form of this zero tolerance. The jury system allows ordinary citizens to come and decide after a judge explains the law, what the facts are of a case. Part of the facts is what actual damages does this person show? Sometimes, if they find maliciousness, they can also answer, what amount would punish this person or corporation enough that they won’t do it again? (punitive damages) Then the judge, after his ruling, can apply his own common sense and order a new trial if the jury’s verdict are far out of line with what the facts are that were presented. A cap on damages is a state legislature deciding, without hearing any facts of a case, and possibly years before the case even occurs, that some amount of money is too much, even if a jury and judge who hear the actual evidence and circumstances think otherwise. A unanimous jury verdict is the purest form of democracy that any of us will experience. An inflexible cap or rule, is the opposite.

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

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.  

You are the Brakes on a Runaway Jury

I wrote earlier about medical malpractice cases in North Carolina and why they are so difficult to start and win.  Briefly, there are special procedures in North Carolina to make sure that medical malpractice cases that are brought in the courts have merit.  Aside from those special restrictions, in every civil case in North Carolina, there are several brakes on frivolous lawsuits and runaway juries.  A North Carolina judge in every case in North Carolina has several opportunities through motions to dismiss, motions for summary judgment, and motions for directed verdict, to totally end a “frivolous” lawsuit before a jury decides.  In addition, the judge can even impose sanctions on a party or an attorney who brings a lawsuit without merit. 

 

Aside from the legal professionals, a jury of normal people, chosen by both sides of a lawsuit, hear the relevant facts and rule not only for who is at fault, but how much damages they should get based on the law the judge gives them.  It takes the unanimous consent of 12 people to award both liability and damages.   Think about that.  Get 12 of your friends together to go to lunch and propose some ridiculous extreme lunch idea, like “let’s drive to Raleighand eat at the McDonalds in the RDU airport!”  Do you think you could get all 12 of them to agree?  In a lot of jury deliberations, one or two jurors may want to give a claimant a large amount of money that is close to or outside the most the evidence would suggest, and others may decide that the same claimant get much less than the evidence shows.  What usually happens is the jury comes to a compromise number that is reasonable. 

 

On the rare occasions when they don’t, the judge has yet another opportunity to put the case back on a reasonable road.  He can render a judgment notwithstanding the verdict, or a new trial for an excessive verdict.  Then there is the appeals level, another opportunity for a case to be tossed out and sanctions awarded. 

 

What “tort reform” usually means is politicians in Raleigh decide that no matter what the facts of a case or the law of a case say, somebody’s damages are limited to an arbitrary amount.  With that, they are saying that YOU and your neighbor are not smart enough to listen to a judge, decide what the facts of a case say about how much a claimant should receive, and argue against anybody who is unreasonable, and that locally elected judges are not smart enough to stop a jury if it gets out of control. 

 

Below is a nice video that shows that the system works.  It briefly addresses the famous “McDonald’s coffee cup case” and shows how, once people hear some of the facts that the jury heard, they change their minds, and the “fancy pants” case about the judge who sued the dry-cleaners.  Everybody knows that the case was frivolous, but nobody seems to know that the system took care of it without any additional help from the state government. 

 

--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.    

Medical Malpractice in North Carolina

      I was at a Continuing Legal Education class the other day on medical malpractice.  One speaker, a gray-haired experienced medical malpractice attorney with many years experience was commenting on cases he would not take.  “I don’t take cancer cases,” he said, “I don’t take infection cases; I don’t like back surgery cases; I don’t like cases with complicated pre-existing medical record; and I don’t like informed consent cases (the doctor did something other than what was agreed to).  Now he was saying this not because he didn’t want to help people with legitimate cases, but because of the difficulty of getting a good result from medical malpractices cases in North Carolina.  The types of medical negligence cases he listed were very difficult to prove the negligence, that the injury came from the negligence, and the recovery at trial would pay back the expenses of the lawsuit. 

       Why are medical negligence cases so hard?  Some of it is built into the facts—medicine in general can get complex.  Some of it is the nature of negligence law in general, and some of it is because of special rules in North Carolina regarding medical negligence. 

      First, to establish Medical Malpractice in North Carolina, an injured patient must show that what the doctor or health care provider did or didn’t do and how that was a breach of the “standard of care.”  Just because a patient has a bad result, does not mean that the doctor breached a standard of care.  In medicine, bad things can happen even if the doctors and nurses did everything they were supposed to do.  This is one reason why my friend doesn’t like to take infection cases.  Bad infections can and do occur even when the doctor and nurses do everything correctly and within the standard of care.

      In North Carolina, the standard of care is what other doctors or health care professionals, with the same type of training and experience, in that community (or a similar community), would have done.  To prove what the standard of care is and how the health care provider breached that standard an expert witness must have reviewed the case and be willing to testify that the care did not comply with the applicable standard of care.  Only in very few cases, such as those dealing with medical instruments left in the body during surgery, is an expert witness not required.  (Presumably because even a lay person could figure out that leaving a scalpel in somebody’s body would be a breach of a standard of care).  This type of pre-filing scrutiny is not required in other types of negligence cases.

      The expert must be in the same specialty or who performs the procedure at issue in his specialty.  For example, an ER nurse can’t testify as to what the standard of care is for an ER doctor; and an ER doctor can’t testify against a neurosurgeon.  The expert must also have been in active practice or teaching in the past year.  Finally, the expert must show that he is familiar with the local standard of care or the standard of care in a demographically similar area with similar health care facilities. 

       The purpose behind requiring an expert opinion and the strict requirements on what the qualifications of the expert have to be, is to prevent cases being filed with little or no merit and to guard against “professional experts,” whose only recent experience is testifying against other doctors.  Whether or not those extra restrictions on a medical negligence claim are needed or effective is a topic for another post. 

      Second, after the patient proves that there was a breach of the standard of care, the injured patient has to show that the breach actually caused damage.  This is another reason why infection cases are very difficult.  Not only can infection occur when the medical professionals follow the standard of care on infection prevention and treatment, but on the times when they don’t follow the standard of care, frequently no infection results.  Causation is also why cancer cases are difficult.  Usually the fact pattern of a possible cancer case is where a doctor failed to diagnose cancer by misreading or failing to order different medical tests.  The patient then discovers the misdiagnosis a few months when she finds out she has and had cancer.  The problem is that even if the first doctor had correctly diagnosed cancer a few months earlier, because cancer is difficult to impossible to treat, an expert can’t say that the delay in cancer treatment made any difference. 

      Third, even if you have a breach of the standard of care that causes damages, a patient considering a medical malpractice action must consider the costs of the lawsuit against the damages and actual injuries from the medical negligence.  Even if your attorney takes a medical malpractice suit on a contingency basis (meaning he gets an agreed upon percentage of the judgment or settlement) the expenses are usually billed to the patient.  In a non-medical malpractice case, these expenses are usually not large and consist of filing fees, copy charges, etc.  But in a medical malpractice case, the experts that both sides are required to have can and do bill at very high per hour rates.  Depending on the number of experts and complexity of the case, the expenses for medical malpractice cases can run into tens of thousands of dollars.  A medical error that results in some additional treatment and even a longer hospital stay would not be economically feasible to file.  You don’t want to spend $30,000 to win $20,000.

      Every case is different, and I encourage everyone to consult with an attorney or several attorneys regarding a possible medical malpractice action as soon as you can.  Medical Malpractice actions, like all other civil actions, have a statute of limitations that limits the time you have to file a legal action. 

--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.    

N.C. Medical Board takes a positive step

Both the legal profession and the medical profession are to a certain degree self-regulating.  They both have non-governmental, independant bodies that establish rules, guidelines and professional ethics for their members.  However, the organization governing lawyers, the North Carolina State Bar, has been far more active historically in disiplining its members than the corresponding medical organization.  Recently however, that organization, the N.C. Medical Board, has taken a positive step to share consumer information with the public. 

Under new rules recently approved, they will post malpractice payouts on its Web page, www.ncmedboard.org, starting in fall 2009. According to this article, included will be:

SETTLEMENTS, VERDICTS AND JUDGMENTS OF AT LEAST $25,000. The board originally proposed posting all payouts, but doctors argued that amounts less than $25,000 reflect so-called "nuisance lawsuits" that they say are often settled for expediency rather than merit. The medical board determined that 90 percent of payouts would still be reported.

MALPRACTICE PAYOUTS SINCE OCT. 1, 2007. By adding each year after that start day, the Web site eventually will maintain a payout history that will go back seven years.

KEY DATES, including when the incident occurred and when the payout was made. The information will not identify patients.

WHETHER THE CASE LED TO DISCIPLINE, based on the board's review of the care that prompted the legal action.

AN OPPORTUNITY TO EXPLAIN. Doctors and physician assistants who have made payouts can give a brief statement about the circumstances of the case.

One fear has been that publishing settlement information would discourage future settlements that until now, typically have been confidential between the parties.  However, the N.C. Medical Board has reviewed this practice implemented by other state medical boards and found no evidence that it has a chilling effect on settlements.

In my opinion, the more the N.C. Medical Board does in releasing negative information about its members and holding them to a higher standard, the more likely it is that medical malpractice, and medical malpractice lawsuits, will decrease.      

Medical Malpractice pays well--for insurance companies

This article from the N&O up in the big city of Raleigh (motto:  Where Barney Fife goes to Party), is just one piece of evidence that any medical malpractice "crises" is simply not accurate.  First, consider that North Carolina has mostly resisted the radical "tort reform" wave that is sweeping the county.  Despite that, the article reports how the largest medical malpractice insurance carrier in North Carolina made enough money that it was paying a three million dollar dividend back to its doctors.  So the insurance company was overcharging the doctors and then convincing them it was frivolous medical malpractice suits that were driving up the cost.  The doctors then unwittingly lobby for tort reform that ultimately helps the insurance company bottom line.  Hopefully the fact that the insurance company is paying the doctors back means that they are beginning to figure out the scam.