The Supreme Court of North Carolina, in it’s two-page opinion filed on August 17, 2018, “agree[d] that the majority at the Court of Appeals erred when it converted plaintiff’s claim of medical malpractice into a claim of ordinary negligence … We therefore reverse the decision of the Court of Appeals on that ground and remand this case to that court to address whether the trial court erred in dismissing plaintiff’s complaint.
Source Locklear v. Cummings, No. 202A17
As we disciused in our June 20, 2017 blog posting, the North Carolina Court of Appeals had held in its decision filed on May 16, 2017 that the plaintiff’s fall from an operating room table at the beginning of her surgery was a claim of ordinary negligence, and not medical malpractice, and therefore she was not required to follow the procedures necessary for filing a medical malpractice claim for the injuries she sustained as a result of the incident.
The Court of Appeals of North Carolina stated that the deciding factor whether the claim is for medical malpractice or is ordinary negligence is whether the decisions leading up to the fall required clinical judgment and intellectual skill. For example, where the complaint alleges or discovery shows the fall occurred because medical personnel failed to properly use restraints, the claim sounds in medical malpractice. However, when a complaint alleges the plaintiff fell off a gurney in an operating room while unconscious, the claim sounds in ordinary negligence, not medical malpractice.
An appellate judge who concurred with a portion of the majority’s opinion but also dissented to a portion of the majority’s opinion stated, in part: “Plaintiff pleaded a claim of medical malpractice by a healthcare provider in her complaint, not a claim of ordinary negligence as asserted by the majority. Because this was a medical malpractice claim, Plaintiff did not comply with pleading requirements when she failed to allege that “all medical records pertaining to the alleged negligence . . . have been reviewed” as required by Rule 9(j). Because the amendment of a complaint for medical malpractice to correct a deficient Rule 9(j) certification is improper and does not relate back to the date of filing the complaint, the trial court did not err in denying Plaintiff’s motion to amend which was filed after the statute of limitations had expired. In dismissing Plaintiff’s complaint, the trial court did not err, as stated in the majority’s opinion, and I must respectfully dissent.”
Source Locklear v. Cummings, No. COA16-1015
If you or a loved one may have been harmed as a result of medical malpractice in North Carolina or in another U.S. state, you should promptly find a North Carolina medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.
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