Alston v. Hueske – Technicalities of Medical Malpractice Filings

Medical malpractice claims in North Carolina must be carefully evaluated and properly filed in a timely manner. The courts are very strict on these rules because they do not wish for busy health care professionals to be bombarded with frivolous allegations of malpractice. doctorpatientrelationship

But of course, these rules do make it tougher for those with legitimate claims (and there are many) to make it through these legal hurdles.

Generally, the statute of limitations for medical malpractice claims in the state is 3 years (with a few exceptions). Additionally, in all cases, the claims must first be viewed by a health care professional similarly-situated to the defendant. That professional has to be willing to testify that the defendant breached the applicable standard of care. All this must be established before a plaintiff even gets their foot in the door. 

The recent case of Alston v. Hueske before the North Carolina Court of Appeals is an unfortunate example of what can happen in medical malpractice cases when these strict criteria aren’t met.

According to court records, a man suffered an injury on his right foot and he had to be hospitalized at the University of North Carolina Hospital in Chapel Hill. He was slated to undergo a skin graft the day before New Year’s Eve, 2011. The procedure required plaintiff to undergo anesthesia, and he needed to have a Laryngeal Mask Airway to help him breathe during the procedure.

At one point during surgery, the anesthesiologist left the room. It’s not clear why. According to the complaint, neither the doctor nor the nurse (defendant in this case) monitored or documented patient’s breathing, oxygenation or ventilation for a full three minutes. In this time frame, patient’s blood pressure fell. His heart rate fell.

Staff had to pump him with medication to increase his blood pressure. That didn’t work. Staff had to perform CPR. Then the staff had to insert a tube into his airway. First, it wasn’t inserted improperly. Then, it had a leak in it and had to be exchanged for another.

For a full 15 minutes, patient suffered with decreased oxygen level that led to cardiac arrest. He was placed on a ventilator.

Defendant nurse told family there was a “small complication” with an “equipment malfunction,” but that it was caught before any harm was done. She told them he’d be “fine.”

He was not fine.

The day after the surgery, the family says they were pressured to make a decision about whether to remove him from life support, which they did. He died on New Year’s Day, 2012.

His family filed a medical malpractice lawsuit against both the anesthesiologist and the nurse.

The claim against the doctor was dismissed voluntarily, leaving only the claim against the nurse (and vicariously, her hospital employer).

Trial court indicated, however, that plaintiff had not complied with Rule 9(j), as plaintiff had only stated that a “board certified” professional planned to testify as to her professional negligence. Plaintiff requested leave to amend, but the court denied this rule.

Because the statute of limitations had run out by that point, plaintiff couldn’t voluntarily dismiss the case and refile it. Plaintiff appealed.

The North Carolina Court of Appeals affirmed. The court noted the rule requires the medical records and medical care be reviewed by someone who is reasonably expected to qualify as an expert witness. Plaintiff had noted the witness was “board certified” but did not specify – was the witness a nurse? A doctor? Some other professional?

Although there are some situations in which trial courts will allow a plaintiff to leave amend a complaint – giving up to a year to do so outside the statute of limitations to do so – this one wasn’t properly filed to begin with, so it didn’t meet the basic requirements for such an allowance.

Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.

Additional Resources:

Alston v. Hueske , Jan. 5, 2016, North Carolina Court of Appeals

More Blog Entries:

Cisson v. C.R. Bard – Good and Bad news for Transvaginal Mesh Plaintiff, Jan. 17, 2016, Charlotte Medical Malpractice Lawyer Blog

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