What if the person you trusted to help you feel better actually makes your illness or condition worse?
Some people have a trusted doctor they rely on for anything from minor medical issues to much more serious conditions. Others are a little more "doctor-shy" and put off seeking medical care unless they really need it. Regardless of which end of the scale you're on, most of us have had to visit a doctor at some points in our lives and been treated for some medical conditions.
When treatment from a doctor falls below a certain standard of care, this constitutes negligence and a medical malpractice claim may arise.
That might seem like a small number to compensate you for your overall health and well-being, but in actuality, you can recover all of your actual expenses — the cap applies to "extras" that don't cost you money, like punitive damages.
What is medical malpractice?
A medical professional's standard of care is the reasonable approach, practice, or procedure for a particular medical situation. Reasonableness is determined by what's common and accepted in the local medical community. That means the standard of care might be different depending on where the treatment was provided. A physician or other medical professional has breached the standard of care if they failed to provide treatment consistent with the local standard.
In addition to breaching the standard of care, an injured plaintiff can make a claim that:
- The provider didn't use their best judgment in determining treatment or care.
- The provider failed to use reasonable care and diligence to apply their knowledge and skill to the patient's treatment.
In North Carolina, a person is considered an expert witness if they either specialize in the same area of medicine as the defendant or a similar area in which they perform the procedure or treatment that's the subject of the lawsuit and they have experience treating similar cases.
Some common medical malpractice claims include:
- Errors while administering anesthesia
- Childbirth mistakes that lead to injury for mother or baby
- Failure to diagnose a disease or condition
- Errors when prescribing medication
Who can be sued in a North Carolina medical malpractice lawsuit?
North Carolina defines "health care provider" as any person or entity licensed to perform medical treatment on patients. This includes:
- Anyone licensed or registered to perform medicine, surgery, dentistry, pharmacy, optometry, midwifery, osteopathy, podiatry, chiropractic services, radiology, nursing, physiotherapy, pathology, anesthesiology, anesthesia, or laboratory analysis.
- Any person who provides assistance to a physician, dental hygienist, psychiatrist, or psychologist.
- A hospital or nursing home.
Contributory negligence and medical malpractice
North Carolina follows a contributory negligence system of law. In some states, if a plaintiff has a small amount of liability for their own injury, they can recover damages that subtract the percentage for which they were at fault. In North Carolina, however, if a plaintiff has any role in causing their own injury, they can't recover any damages.
How might this affect a medical malpractice claim?
For example, if you believe that a physician prescribed you the wrong medication for your illness and it caused you to become more severely ill, that might be medical malpractice. But if you also took the medication in a way that was different from what the doctor prescribed (greater or lesser quantity or on a different schedule, for instance), then you might be found to have some fault for your illness.
Another example might be if you visited a physical therapist for a shoulder injury. Perhaps they gave you a list of exercises you could perform at home in order to strengthen your muscles and heal from the original injury. Instead, your injury became worse. If you performed the exercises exactly as the therapist suggested, it could be medical malpractice. But if you did them in a different way or using different weights, you could be partially at fault.
Types of damages in a medical malpractice lawsuit
All personal injury lawsuits (including medical malpractice cases) begin with the same basic premise:
The purpose is to make the plaintiff whole.
If your claim meets the necessary criteria to establish that a defendant was negligent and that negligence caused you harm that cost you money, you can recover the amount of money necessary to restore you to the financial condition you would be in if the injury hadn't happened.
Economic damages are those with a specific financial cost. This might include:
- Medical treatment. Medical treatment costs can include doctor and hospital visits, prescription medication, assistive devices, rehabilitative therapies, and any other costs related to your physical recovery from the malpractice.
- Lost income. You can also claim salary and wages as a loss from an accident. This might include the time you had to take off from work following your injury, a reduction in wages if you had to return to a different job than the one you had before the accident, and loss of earning capacity. Loss of earning capacity is the difference between what you would've earned for the remainder of your lifetime and what you will actually earn because of the injury.
Non-economic damages don't have a specific monetary value. This category of damages still aims to compensate you for losses, but they could be intangibles and it's harder to assign a specific monetary value. Examples of non-economic damages include:
- Emotional distress. Emotional distress damages compensate a plaintiff for the non-physical effects of an injury. This might include fear, anxiety, sleep disturbances, post-traumatic stress disorder, or other psychological conditions that arise following trauma or serious injury.
- Loss of enjoyment. Life is about more than the necessities. You might be able to eat, sleep, and function, but can you enjoy your time? If you were an athlete who can no longer play your sport because of the malpractice, or you were a music composer who lost your hearing, or even a less extreme situation — like you're unable to walk your dog or play with your kids—you could be eligible for a damage award for loss of enjoyment.
- Loss of consortium. A common misperception of loss of consortium claims is that they're just about sex, but that's simply not true. If a loved one has been in an accident and lost the ability to provide love, affection, companionship, comfort, or even the ability to participate in household responsibilities and child-rearing, you might have a loss of consortium claim.
Punitive damages are calculated separately from both your economic and non-economic damages (together, these are called compensatory damages) as a punishment or deterrent to a defendant when the action that caused the injury was malicious, willful, or especially egregious.
In North Carolina, there are a couple of factors that affect whether a plaintiff is awarded punitive damages:
- The egregiousness of the conduct. Egregious, which means "outstandingly bad; shocking," refers to willful or wanton conduct, fraud, or malice. North Carolina law defines "willful or wanton conduct" as "the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm."
- Defendant's ability to pay. When you sue a defendant for costs related to your injury, the court doesn't permit the plaintiff to present evidence regarding the defendant's wealth or assets. But if you make a claim for punitive damages, you're allowed to present this evidence. The plaintiff's lawyer may provide evidence of available insurance to allow the judge or jury to know what amount of damages would reach the defendant's personal funds.
North Carolina law § 1D-35 presents the following factors as determining whether or not to award punitive damages:
- The reprehensibility of the defendant's motives and conduct.
- The likelihood, at the relevant time, of serious harm.
- The degree of the defendant's awareness of the probable consequences of its conduct.
- The duration of the defendant's conduct.
- The actual damages suffered by the claimant.
- Any concealment by the defendant of the facts or consequences of its conduct.
- The existence and frequency of any similar past conduct by the defendant.
- Whether the defendant profited from the conduct.
- The defendant's ability to pay punitive damages, as evidenced by its revenues or net worth.
There are 2 aspects to the medical malpractice damage cap in North Carolina that make it a little less straightforward than an actual number:
- The total amount of non-economic damages against all defendants cannot exceed $500,000; and
- The total amount of non-economic damages granted to all plaintiffs cannot exceed $500,000.
- Your injury was caused by negligence on the part of a surgical team that included a doctor, anesthetist, and 2 nurses. You can't recover $500,000 from each of them. Rather, your total non-economic damages would be that amount from all 4 individuals, combined.
- There can be more than 1 plaintiff in a medical malpractice lawsuit. There might be a lawsuit for a birth injury where the plaintiffs are a mother and baby, or there could be a loss of consortium claim by a spouse added on to a lawsuit by an injured primary plaintiff.
Special evidence laws for North Carolina medical malpractice cases
There are 2 laws for North Carolina evidence that are specifically related to medical malpractice lawsuits:
- The expert witness must testify that the injured person's medical treatment was below the accepted standard of care in order to be medical malpractice.
- If the case is for medical malpractice that happened while a patient was receiving emergency treatment, the negligence must be shown by clear and convincing evidence.
Statute of limitations for a North Carolina medical malpractice lawsuit
A North Carolina medical malpractice claim must be filed within 3 years from the date of your injury. North Carolina also has a discovery rule, which says that the statute of limitations begins to run from the date you discover the injury and that it was caused by medical malpractice. However, this only extends to a maximum of 4 years after the injury.
If the injured person was less than 10 years old at the time of their injury, the lawsuit may be filed anytime up to their 10th birthday.
What to do if you suspect you've been injured by medical malpractice
- Get a second opinion. Don't accuse your doctor of medical malpractice because they might become defensive and that could affect your treatment moving forward. Instead, seek a second opinion from another doctor in the same specialty but in a different medical group or practice.
- Request your medical records. This might be the most important part of the process. Your records should contain notes on every doctor's visit, treatment, medication, and procedure that led to and included the injury. It also shows what didn't happen, and that's important, too.
- Keep a journal of your experience. This can be very helpful in establishing how the doctor's error has impacted your life, whether it's documenting how you feel physically each day, if you've had to take time off from work, or if it's affecting your mental state. A lawsuit can take a long time to get through the legal system, and you won't remember a year from now how you were feeling today.
Personal Injury Attorney Interview Sheet
Worksheet with questions to ask a personal injury attorney to help determine if he or she will be a good fit for your case
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- Look for a lawyer. An experienced medical malpractice lawyer knows what to look for, questions to ask, and has access to experts and other professionals who can determine whether your injury is the result of malpractice and how much you might be able to receive in damages.
Did you know that medical malpractice law varies by state?
How to find a personal injury lawyer
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