Not all injuries that occur in a hospital are results of medical malpractice. This is an important distinction because the proof burden imposed on plaintiffs in medical malpractice lawsuits is substantially higher than for those asserting general negligence. That’s why when a dispute arises as to whether a particular case is medical malpractice as opposed to general negligence, defendants will almost always argue that it’s medical malpractice because those claims are held to a higher standard, so they are tougher to prove.
While this may seem a pretty straightforward matter to clear up, it can actually be quite nuanced, depending on the circumstances. That’s why it’s important to have an experienced injury attorney working for you. A failure to file a medical malpractice claim properly could result in a summary judgment or dismissal in favor of the defense, and depending on the timeline, it could mean your chance to bring any claim at all has passed.
In the recent case of Gause v. New Hanover Regional Medical Center, the question of whether it was medical malpractice or general negligence was before the North Carolina Court of Appeals. The plaintiff in the case is the daughter of a patient who was injured in a fall during an x-ray exam and later died as a result of those injuries. She filed a claim for damages by asserting ordinary negligence. However, the defendant argued this was actually a medical malpractice case.
According to court records, the 73-year-old patient was driven by her adult daughter, the plaintiff, to the emergency department of her local hospital because she was experiencing chest pains that were related to a fall she suffered several days earlier. The patient had a known history of falling, since she was frequently unsteady, and she often needed help in walking any kind of distance.
Once in triage, a nurse assessed the patient and ordered one of two types of x-rays on her chest. One type of x-ray requires that the patient be standing between two pieces of x-ray equipment. A second type of x-ray can be taken when the patient is sitting or lying down. The first kind is reportedly preferable because it produces a better image and therefore a more accurate diagnosis.
After waiting a few minutes, the patient was taken into a restricted area with an x-ray technician and wheeled into a radiology room. Her daughter stayed in the hall. The technician asked the patient if she thought she could stand, and she said, “I think so.” The tech was reportedly surprised when the patient then immediately and rapidly stood up with no assistance. The tech watched as the patient took a few steps and then fell backward. The tech couldn’t catch her fast enough. The patient’s head struck the floor. She suffered a severe traumatic brain injury as a result of that fall, which left her unable to communicate or perform basic tasks of daily living. She was then transferred to a nursing home, where she received 24-7 care and died 15 months later.
The plaintiff filed a complaint on behalf of her mother (while she was still living) for personal injury and then later added a claim of wrongful death. She alleged ordinary negligence, asserting the defendant technician (and her employer) did not properly support her mother, allowed her to stand and sit without properly securing her, placed her in an unsteady position, and failed to take adequate measures to support her. The complaint did not mention medical malpractice and did not comply with Rule 9(j), which spells out guidelines for medical malpractice claims – one of which requires the testimony of an expert witness.
The defendant moved for the dismissal of the claim, arguing it didn’t comply with requirements for medical malpractice claims, which is what it ultimately was. The trial court granted that motion. The plaintiff appealed, but the appellate court affirmed.
The court reasoned that the plaintiff’s responses to discovery revealed allegations that the defendant was negligent in providing or failing to provide professional services. Secondly, the court reasoned that the undisputed evidence showed the patient’s injury resulted from the x-ray technician’s activities, for which she was required to use her clinical judgment. The court ruled that for these reasons, the plaintiff’s claims sounded in medical malpractice rather than ordinary negligence.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Gause v. New Hanover Regional Medical Center, Dec. 30, 2016, North Carolina Court of Appeals
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