A North Carolina appellate court 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.
In the case the North Carolina appellate court was deciding, the plaintiff alleged that on July 31, 2012, while the plaintiff was undergoing cardiovascular surgery performed by the defendant cardiovascular surgeon, the defendant failed to monitor and control the plaintiff’s body and was distracted, and he failed to position himself in close proximity to the plaintiff’s body. The plaintiff alleged that while her body was opened up and surgical tools were within her, she fell off of the surgical table, hitting her head and the front of her body on the floor, causing her to suffer a concussion, to develop double vision, to sustain a jaw injury, and to suffer bruising.
The North Carolina appellate court held that the plaintiff’s complaint sounds in ordinary negligence, not medical malpractice: the plaintiff’s factual allegation that she “was allowed to fall off the operating table while Plaintiff was opened up and had surgical tools in her” forecasts the type of injury resulting from actions not requiring specialized skill or clinical judgment.
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
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