Special Treatment: Physician Protections in North Carolina Malpractice Cases

As attorneys pursuing medical malpractice claims in Fayetteville, North Carolina, we often begin our consultations with potential clients by explaining the numerous ways that health care providers are protected from suit under North Carolina law.

Several special rules apply in medical malpractice cases. These rules are the result of aggressive lobbying campaigns in the North Carolina General Assembly by physicians and their insurance companies.

N.C. Rule 9(j): An Expensive Hurdle Before the Race Begins

Medical malpractice. – Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:

(1)        The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;

(2)        The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or

(3)        The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.

Rule 9(j) was passed in 1995. It presents several challenges for anyone looking to pursue a medical malpractice claim in North Carolina.

Obtaining “ALL” Relevant Medical Records and Expert Review

Before a medical malpractice claim can be filed, all the Plaintiff’s medical records must be obtained and reviewed by an expert in the same field as the defendant medical provider.

Rule 702 adds additional requirements for specialists.

Fulfilling these requirements takes time and money. Obtaining medical records can take months, especially when dealing with government health care providers. Expert witnesses typically charge by the hour to review the records and provide an opinion about the standard of care provided to the Plaintiff.

The result: several months of time can pass and thousands of dollars can be spent before a malpractice action is filed. This financial hurdle is enough to wash out smaller malpractice claims, giving health care providers a “free pass” for small mistakes.

The Limit on Damages: A Smaller Trophy When the Race is Won

The North Carolina General Assembly passed additional protections for health care providers in the form of a cap on “noneconomic damages.” The current cap, as of January 1, 2023, is $656,730.

Non-economic damages include pain and suffering and lost enjoyment of life. No matter how much pain you have suffered and how much a physician’s negligence has ruined your life, your damages are capped.

There is one exception:

(1) The plaintiff suffered disfigurement, loss of use of part of the body,
permanent injury or death.
(2) The defendant’s acts or failures, which are the proximate cause of the
plaintiff’s injuries, were committed in reckless disregard of the rights of
others, grossly negligent, fraudulent, intentional or with malice.

It is extremely difficult to prove that a physician acted in a grossly negligent manner. The cap has only been “busted” in a few select cases in North Carolina since its inception.

Overcoming The Special Treatment

The protections outlined above present hurdles for any victim of medical malpractice in North Carolina. However, it is still possible to obtain justice if the right attorney is sought.

Attorneys Matt and Billy Richardson pursue medical malpractice claims for their clients in spite of these protections. If you’ve been injured by the negligence of a medical provider, call or contact us to set up a free consultation. We will provide you with an honest assessment of your case, and we will fight for every bit of compensation available.