In Livingston Gause v. New Hanover, a North Carolina appellate court considered whether a patient’s fall during an X-ray brought his injury claim under medical malpractice laws. The case arose when a daughter drove her mom to the ER because she had chest pains related to a fall. The mother was 73 and had a history of falls.
At the ER, a nurse evaluated the mother’s complaint and determined which priority she should be. She asked for an x-ray chest PA or AP. The PA chest x-ray required a patient to stand, while the AP could be taken with the patient lying down or sitting or standing. However, the PA provided more information about the patient, permitting a more accurate diagnosis.
After several minutes, the mother was taken to a restricted area within the ER and evaluated by a different nurse. The x-ray technician met the mother and her daughter in the hall and took her in a wheelchair to radiology. The daughter stayed in the hall. The tech explained what was going to happen to the mother, asking her if she could stand, and the mother answered that she thought she could stand. The mother then stood up without help. However, the tech spoke to a doctor later in the day and told the doctor that she stood the patient up.
The mother took steps toward the wall. The tech thought she seemed stable. The tech turned and walked away to get a tube in position. When the tech turned back, she saw the mother falling back. The mother’s head hit the floor, and she suffered a severe traumatic brain injury that left her unable to speak or perform her usual activities of daily living. She became a resident at a long-term nursing care facility, where she got 24-hour care. She died in the nursing home about 15 months after the fall.
While she was still alive, her daughters sued the tech for negligence on a theory of res ipsa loquitur. They claimed the tech had negligently taken the mother to and from the x-ray room, asked the mother to stand without support, put her in an unsteady position, failed to secure her, failed to take precautions against falls, and acted negligently in other ways. There was no claim for medical malpractice, and the plaintiffs didn’t comply with North Carolina’s Rule 9(j), which requires a plaintiff to have an expert review a lawsuit before filing a medical malpractice case.
The defendant asked the case to be dismissed for a failure to comply with the rule. In her discovery responses, the plaintiff specified acts of negligence, including the defendant’s failure to ask the plaintiff about her history of falls and failure to conduct a fall risk assessment to decide whether to take the x-ray PA or AP. She also claimed that the defendant failed to administer the x-ray correctly.
The defendant moved for summary judgment on the ground that no expert review had taken place, as required by North Carolina law. The motion was granted. The plaintiffs appealed.
On appeal, the plaintiffs argued that their case shouldn’t have been dismissed because they hadn’t claimed medical malpractice but only ordinary negligence. The appellate court disagreed. It explained that the plaintiff’s discovery responses showed they were alleging the defendant had negligently failed to provide professional services. The injury had arisen out of the x-ray technician’s actions, which required the use of clinical judgment.
The appellate court explained that in North Carolina, a medical malpractice action is one for damages arising out of the failure to provide or the provision of professional services by a health care provider under N.C. Gen. Stat. § 90-21.11(2)(a). The plaintiffs had made several contentions that the defendant had negligently provided or failed to provide specific professional services, like assessing the patient. The appellate court found that since there was no 9(j) certification, they didn’t allege a viable claim for medical malpractice. The appellate court affirmed this part of the lower court’s ruling.
If your loved one has suffered a traumatic brain injury, the experienced personal injury attorneys at Maurer Law may be able to help you recover compensation. Contact us at 919-229-8359 or via our online form.
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