It is important in these situations to choose an experienced law firm. One of the key reasons for this has to do with the fact that very early on, your legal team will need to correctly ascertain whether this is a claim of ordinary negligence or medical malpractice.
If it is a case of medical malpractice – one in which health care providers are alleged to have deviated from the accepted standard of care – the proof burden will be higher. You will need to present expert witness testimony just to get your foot in the door at trial – something that isn’t needed in an ordinary negligence lawsuit.
Case-in-point: Rollins v. RHA Health Services Inc., recently before the North Carolina Court of Appeals.
Plaintiff in this case was appealing a summary judgment favoring defendant nursing home after trial court decided this was a case of medical malpractice – not ordinary negligence – and plaintiff hadn’t met the proof burden for the former.
Central to this case were the requirements set forth in Rule 9(j) of the North Carolina Rules of Civil Procedure. The rule states that all claims alleging medical malpractice by a health care provider in failing to abide the applicable standard of care as set forth in G.S. 90-21.12 are to be dismissed unless:
- The opinion of a qualified expert witness establishes defendant failed to abide the applicable standard of care;
- The facts alleged establish negligence under existing common law standards.
In the Rollins case, plaintiff was a representative of the estate of decedent, a profoundly mentally disabled woman who was unable to verbally communicate.
The events in the underlying action occurred in 2012, when around noon one day, the staff at the long-term nursing facility where she resided called the on-call nurse to inform her the patient was vomiting. There were a series of back-and-forth phone calls throughout the day. At one point, patient suffered a seizure, but thereafter seemed to recover. However, her condition worsened and a physician’s assistant ultimately recommended the woman be transported to the emergency room.
When EMS workers arrived, they described the woman as non-responsive with no gag reflex. She was later deemed brain dead and died later the following day. Cause of death was a combination of pneumonia, seizure disorder and lack of oxygen to the brain.
Plaintiff filed a wrongful death lawsuit, alleging pro se negligence and ordinary negligence on the part of the nursing home. Pro se negligence indicates there was some violation of law that renders a defendant automatically negligent.
Defense countered that there had been no assertion of a violation of law, and further, this was not a claim for ordinary negligence, but rather sounded in medical negligence – and plaintiff hadn’t provided testimony from an expert witness to prove his point.
Trial court agreed and granted defense motion to dismiss, finding plaintiff had not cited any statute that had been violated and the complaint sounded in medical negligence, but plaintiff had not complied with Rule 9(j).
Appellate court affirmed. Justices noted plaintiff’s allegations against the professional conduct of “health care providers.” Also, statute clearly indicates that nursing homes may be subject to medical malpractice action (though not every case against a nursing home will be for medical malpractice).
If you or a loved one has suffered injury at a nursing home in Charlotte or elsewhere in North Carolina, contact our offices today.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Rollins v. RHA Health Services Inc., March 1, 2016, North Carolina Court of Appeals
More Blog Entries:
U.S. Regulators: Hoverboards Don’t Meet Safety Standards, March 2, 2016, Charlotte Injury Attorney Blog