Suing a Doctor for Ordinary Negligence in North Carolina

operating roomIn a recent North Carolina appellate decision, the court considered an appeal dismissing a plaintiff’s complaint against a doctor, health care system, and physician group. The plaintiff had sued the defendants, asking for money damages for medical negligence after the defendant doctor performed heart surgery on the plaintiff. During surgery, the doctor didn’t control or monitor the plaintiff, and while she was open with surgical tools inside her, she fell from the surgical table. Her head and body hit the floor.

She suffered a jaw injury, bruises, and a concussion and was battered on the side of her body. Later, she’d have nightmares about the fall. A process server served the physician group by serving its registered agent in September 2015. Ten days later, the doctor was served. Five days later, the health care system was served by delivering the complaint to its CFO.

The doctor and physician group answered and moved to dismiss. They denied the allegations and raised various defenses. The health care system moved to dismiss. The CFO provided an affidavit, explaining he was just the CFO, rather than the registered agent.

The trial court held a hearing. The plaintiff asked for leave to amend the complaint. The trial court granted the doctor and physician group’s motions to dismiss and denied the motion to amend. The trial court granted the health care system’s motion to dismiss as well. The plaintiff appealed.

The appellate court found that the plaintiff’s claims were for ordinary negligence, rather than medical malpractice. In North Carolina, plaintiffs need to comply with Rule 9(j) in order to bring a medical malpractice action. They don’t need to comply with this rule if the case is based on ordinary negligence. Under N.C. Gen. Stat. § 90-21.11(2)(a), a medical malpractice action is one that arises from the furnishing of or failure to provide professional health care services. These involve specialized knowledge or skill. On the other hand, ordinary negligence claims are those that allege harm from acts or omissions in a medical setting that were mainly physical and didn’t involve clinical judgment or assessment.

The issue in this case was whether the decisions leading up to the plaintiff’s fall mandated clinical judgment and intellectual skill. If a complaint shows that staff failed to use restraints, it would be a medical malpractice claim. However, since the plaintiff fell from the gurney while unconscious during an operation, it was ordinary negligence.

The appellate court explained that the plaintiff had used language that would ordinarily trigger a medical malpractice lawsuit, but the actual facts gave rise to negligence. Specifically, she was allowed to fall while open and with surgical tools inside her, and this happened because of actions that didn’t require the use of specialized judgment or skill.

The doctor and physician group argued that the plaintiff had failed to argue that her action wasn’t medical malpractice. The appellate court noted that the plaintiff wasn’t required to comply with the certification requirement, so it was incorrect for the trial court to dismiss her complaint on that basis.

The court reversed as to the dismissal against the doctor and physician group, but it affirmed the dismissal against the health care system.

If you suffered injuries due to the wrongful conduct or negligence of another party, the experienced North Carolina 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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