A man died at a North Carolina hospital, and his widow later sued the facility and staffers for wrongful death and intentional infliction of emotional distress. But her claim didn’t meet the stringent requirements under the state’s medical malpractice guidelines, spelled out in Rule 9(j). The plaintiff argued this wasn’t a medical malpractice claim.
It may seem strange at first glance, but not every negligence claim pertaining to a hospital is founded on an assertion of a deviation from the applicable standard of care. It’s an important distinction because the proof burden for medical malpractice cases is much more stringent, and expert witnesses are a must. If your claim is not rooted in medical malpractice, there is no need to spend the extra time and expense building that kind of case.
The case of Norton v. Scotland Memorial Hospital, et al. began with the tragic and unexpected death of a man in Laurinburg in 2012. According to North Carolina Court of Appeals records, the decedent was a married father of two children (who were also named plaintiffs in this action). He was fairly active and in good health, but he went to the hospital one day in July, complaining of abdominal pain. His condition worsened. He was transferred to the intensive care unit, where he was placed on a ventilator and not long afterward died. It’s not clear from the complaint whether the decedent died while at Scotland or after he was transferred to Duke University Health System (another named defendant). Duke’s lawyers contend the decedent’s body was transferred to their facility after his death.
The plaintiffs filed complaints against both facilities. The victim’s widow alleges he screamed and cried out several times for his wife and children – so loudly and adamantly that people in the waiting room commented on it. However, the staff at Scotland allegedly refused to allow the plaintiff to see her husband. The widow went to the staff and told them she had been waiting an excessively long time and wanted to see her husband. Staffers sat beside her but refused to let her see her husband.
She did not see him at all before he died, and, she alleges, neither she nor her husband gave permission for him to be removed from the ventilator, which was the point at which he died. After his death, she was asked whether she wanted an autopsy performed. She said yes but stipulated she did not want his head to be cut. But the staff at Duke reportedly cut his head anyway, allegedly based on orders from the Scotland facility.
The complaint additionally indicates the decedent was previously an organ donor but then declined to remain so when he renewed his driver’s license, and he had discussed this fact with his wife. Despite this, both his eyes and other organs had been removed from his body for transplant into other patients.
The plaintiffs allege negligent infliction of emotional distress, intentional infliction of emotional distress, loss of consortium, negligence, and wrongful death. Both defendants filed motions to dismiss with the trial court for failure to state a claim because, they contended, this was a medical malpractice claim, and the plaintiff hadn’t adhered to the strict requirements for such claims. They also argued the plaintiff’s claims for wrongful death were barred by the statute of limitations. The trial court granted these motions to dismiss.
On appeal, the appellate court reversed.
The plaintiffs argued Rule 9(j) certification wasn’t required here because the allegations didn’t involve an injury to the decedent or concerns regarding his medical treatment or death. Instead, the plaintiffs argue the claim stems from the staff’s failure and refusal to allow the decedent’s family to see him before his death, as he was crying out. The appellate court agreed. The complaint thereafter says he was removed from a ventilator without his or his family’s consent, and then he died. The court ruled that these unique and specific factual allegations don’t fall under the plain language of the aforementioned rule to require the certification of a medical expert.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Norton v. Scotland Memorial Hospital et. al , Nov. 15, 2016, North Carolina Court of Appeals
More Blog Entries:
Yugueros v. Robles – Plastic Surgery Death Lawsuit Won’t be Retried, Nov. 25, 2016, Asheville Medical Malpractice Lawyer Blog