Articles Posted in North Carolina

surgeonsNorth Carolina Lawyers Weekly has a good article on a $2 million verdict against a vascular surgeon that I think is of interest to both medical malpractice attorneys and surgical malpractice victims.

Facts of the Case

Plaintiff went to Pitt County Memorial Hospital for vascular surgery.   She had suffered for years with vascular disease that left her with only a half a kidney that was not functioning very well.   She was suffering pain from an aortic aneurysm.  This is a bulge in a section of the aorta which is our main artery that carries oxygen from the heart to the rest of our body.  It is a dangerous condition.  In a nutshell, this woman was frail and having real health issues.

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Law School 101: To bring a successful tort lawsuit, you have to prove injury and causation. Whether it be a First Amendment case or a mesothelioma injury, a plaintiff must plead facts alleging injury and causation in order for a court to hear the case. Proving causation can be a challenge in many personal injury cases but is particularly a challenge in mesothelioma and other toxic tort cases.

Everyone with a television has heard of mesothelioma lawsuits. You see these crazy “now I can buy a baseball team” verdicts and assume it is shooting fish in a barrel. Simply having cancer and thinking it was caused by asbestos – even knowing your mesothelioma was caused by asbestos – will not stand up in court. We learned this in Maryland the hard way last week when a $15 million verdict was reversed by the Maryland Court of Special Appeals.  [Update: the Maryand high court reinstated this verdict against Ford Motor.] A North Carolina case decided a few weeks ago had a decidedly happier ending.

In Miller v. 3M the defendants attempted to have plaintiff’s mesothelioma asbestos lawsuit dismissed based on the plaintiff’s inability to plead facts necessary to find injury and causation.

A federal judge in Georgia granted the United States’ motion for summary judgment on the grounds that the 10-year North Carolina statute of repose barred claims for plaintiffs’ alleged exposure to solvents and benzene in public water at Camp LeJeune Marine Corps Base in North Carolina. Plaintiffs were exposed to these volatile organic compounds (VOCs) from 1957 up until 1987.

Then, along comes this draconian statue of repose. Unlike the statute of limitations, the statute of repose starts running whether or not you are aware of any defect and may toll even before you are injured.

Plaintiffs had hoped that reasonableness demanded an exception for latent diseases, but the court disagreed. Ultimately, and unfairly, I think this may be the correct ruling. The cardinal canon before all others in statutory construction is “that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” There is no latent exposure exception in the statute.

People think I’m crazy. But, I won’t take my kids skiing. Too many people have died on ski slopes. Wikipedia has a page listing skiing deaths, for crying out loud. Most of them were doing stupid things. Still.

It is also really tough to bring a claim for skiing injuries in most states, as the plaintiff in this North Carolina case found out.

The law is really tough on skiers. There are skier responsibility statutes in Colorado, Montana, Idaho, New Hampshire, Maine, and New Mexico (and probably other states that I don’t know about). Vermont has a one year statute of limitations for ski area operator liability (which has to be a legal malpractice trap for some lawyers). New Hampshire adds to the madness with a 90-day notice-of-claim requirement. (Give them some props, ski resorts have the best lobbyists.)

A wrongful death lawsuit has been brought by the survivors of three people killed in a car accident. The wrinkle in this case is that they have brought a suit against the city of Charlotte and Crescent Resources, accusing them of negligence for not installing a traffic light where the high-speed crash along N.C. 49 occurred two years ago.

Why bring in the governement entities? The families’ lost loved ones were not the cause of the accident: the accident was caused by two guys who were racing. The answer in these cases is always the same: inadequate insurance.

The suit claims Charlotte and Crescent Resources, the developer of a community along the highway in southwest Mecklenburg County, created a dangerous intersection and failed to install a traffic light.

These are North Carolina medical malpractice statistics of interest. Unless otherwise indicated, the statistics are from 1998-2009.

  • There are an average of 566 medical malpractice lawsuits filed in North Carolina each year, or one-quarter of one percent of the lawsuits filed in North Carolina. For those who think malpractice lawsuits are increasing in number: there were 496 malpractice lawsuits in 2009, the last year studied.
  • ƒ Said another way, from 1998 through 2009, the number of all civil case filings in North Carolina

The North Carolina Medical Board has launched a website to help patients determine whether doctors who have been found liable for medical malpractice for more than $25,000 or have been convicted of a felony.

I wrote about about this issue last year.

You can find the website here.

The Baltimore Injury Lawyer Blog has a post on a Maryland Daily Record article looking at how President-Elect Barack Obama might change the 4th Circuit Court of Appeals which includes Maryland, Virginia, West Virginia, North Carolina, and South Carolina.

I’ve spend far more time thinking about how President Obama will change the country than his impact on lawyers or even my own clients. But President Obama is going to nominate judges that I am going to stand before and argue. While I do think President Bush has nominated a lot of good judges, this fact makes me a little happier to be a lawyer today. I’m not saying every plaintiffs’ lawyer is going to have a better shot at success in front of judges nominated by Obama. I just think they are likely to be fair and reasonable judges.

AIG will pay $18 million to settle a lawsuit filed by a man who suffered a serious brain injury after he was struck by a truck in the parking lot of an apartment complex. The settlement nullifies a $75 million judgment reached in a North Carolina superior court after an AIG subsidiary declined to defend the case. Why they declined to defend the case is anyone’s guess but it certainly was a screw-up that probably increased the value of this case.

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The North Carolina Medical Board voted on Wednesday to modify its grand proposal for posting medical malpractice settlement data online according to the Triangle Business Journal reports.

Now, the North Carolina medical board will post only malpractice settlements of more than $25,000 and will post verdicts only since 2007.

I have more of a problem with the latter change than the former. Doctors in North Carolina protest that many medical malpractice settlements of more than $25,000 are “nuisance cases” and could give health care consumers the false impression that they were settled because of substandard care.