How Do I Start a Medical Malpractice Claim in North Carolina?
Full Question:
Answer:
A medical malpractice claim is determined by a judge after a complaint is filed in court. Theere are statutes of limitations that limit the time a claim may be filed to a certain number of years after the cause of action accrues. In North Carolina, a cause of action for medical malpractice for misdiagnosis accrues at the time of that the last act giving rise to the injury occurred. Suit must be filed within three years of this date or two years after the date the injury was, or should have been, discovered. In no event can a person bring a medical malpractice action more than four years after the last act giving rise to the injury occurred. Actions on behalf of minors arising out of the performance or failure to perform professional services must be filed within these time limits, except if the limits expire before the minor reaches age 19. In that case, the action may be brought before the minor’s 19th birthday.
Medical malpractice is the failure of a medical professional to follow the accepted standards of practice of his or her profession, resulting in harm to the patient. Usually, proof of failure to comply with accepted standards of medical practice requires the testimony of someone with expertise in the area of medical practice. Some states have special evidentiary rules applicable to malpractice claims.
The standard of care is usually established by expert testimony on how similarly qualified practitioners would have managed the patient's care under the same or similar circumstances. At one time such standards were referred to as the "standard of care in the community" but, with the globalization of information and credentialing, standards are now often considered to be national and not just simply related to the community. There are, however, special circumstances, as when a community is physically isolated from the rest of a country, that national standards might not apply.
Many medical malpractices cases involve failure to diagnose, and therefore, a failure to treat a condition. It may be that the doctor should have ordered certain tests, or failed to interpret tests ordered properly. Often, someone other than the ordering doctor interprets the test and prepares a report, for which the doctor is responsible to read carefully. In order to claim damages, a plaintiff must show that the condition was worsened by a failure to obtain timely treatment caused by the lack of or incorrect information. Malpractice that results in death can give rise to two separate claims: a malpractice claim for personal loss and suffering prior to death, enforceable by the decedent's personal representative, and a wrongful death claim for monetary loss to the decedent's spouse and next of kin.
Defendants in a medical malpractice case often claim that the injury complained of wasn't caused by their actions/inactions, were the result of the actions/inactions of another, or were caused by a pre-existing condition of the plaintiff's. Contributory and comparative negligence laws vary by state.
Whether the standard of care was below acceptable levels will need to be determined by a medical professional after reviewing the medical records. In a wrongful death case, it will need to be proven that the lack of proper care was the cause of the death, and the patient didn't die of other causes. Medical malpractice cases are complex and involve complicated medical issues. I suggest contacting a local attorney who specializes in medical malpractice and can have the medical reviewed by a medical expert. Many attorneys provide a free consultation and will take cases medical malpractice cases on a contingency basis.
