Articles in the Civil Law category - Page 2 of 4

More than 200 district court judges from districts across North Carolina convened last week for their semiannual conference. Much of the continuing education agenda was dedicated to informing judges about […]

Spend a fall Friday in Chapel Hill with us for practical legal education and 6.25 hours of live CLE.  Civil and criminal updates, Supreme Court case review, a land use […]

Earlier this month the North Carolina Supreme Court issued its opinion in Vaughan v. Mashburn, an important case interpreting Rule 9(j), the special pleadings rule for medical malpractice actions.

Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation that the medical care and medical records have been reviewed by an expert who meets certain qualifications and who is willing to testify that there was a breach of the standard of care.  If a plaintiff fails to include the Rule 9(j) language, the complaint “shall be dismissed.”  This special pleading requirement does not apply to other types of malpractice or to ordinary negligence actions. The original aim of the rule was to reduce frivolous med mal litigation; but, as I have noted in the past, in its short life it has generated well over 100 published appellate opinions as courts have grappled with its undefined provisions, reconciled it with other procedural rules, and tried to determine when it does and does not apply.

Vaughan, the latest such case, centers on whether a party can invoke Rule of Civil Procedure 15 to amend defective language in a Rule 9(j) certification.  Before filing her action, Ms. Vaughan had timely obtained the required expert review of her medical care and medical records.  When her attorney filed the complaint, he included a Rule 9(j) certification, but it was defective in the following sense: it certified that the medical care had been reviewed, but it failed to also state that the medical records had been reviewed.  The medical “records” language had been added to Rule 9(j) in 2011, and the attorney erroneously included the pre-2011 language.  Soon after the complaint was filed, the original statute of limitations expired.  When the mistake in the Rule 9(j) certification was revealed, Ms. Vaughan’s counsel moved to amend the complaint to add the omitted phrase.  Following existing Court of Appeals precedent, the superior court denied the motion to amend as “futile” because, even if granted, the Rule 9(j) certification could not be properly made prior to expiration of the statute of limitations.  Based on its prior decisions (Fintchre (2016); Alston (2016); and Keith (1998)), the Court of Appeals affirmed.

A couple of years ago, I posted about orders to surrender firearms in Chapter 50B domestic violence protective orders. See https://civil.sog.unc.edu/when-can-the-court-order-surrender-of-firearms-in-a-dvpo/. Earlier this summer, the NC Court of Appeals addressed orders to surrender firearms in Chapter 50C Civil No-Contact Orders. In Russell v. Wofford, (NC App June 19, 2018), the court held that a trial court has “no authority under NCGS Chapter 50C to order defendant not to possess or purchases any firearms, to surrender his firearms, or to revoke his concealed carry permit.”

READ POST "When can the court order surrender of a firearm in a 50C Civil No-Contact Order? (August 16, 2018)"

Rule 9(j)’s special pleading requirement Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation not required in other […]

Contracts often include agreements stating how litigation will be handled in the event the parties have a dispute.  These agreements sometimes include “choice of law” and “forum selection” provisions.  In a choice of law provision, the parties specify that the contract will be interpreted according to the law of a particular state.  In a forum selection clause, the parties specify the State—and sometimes the specific county—in which disputes will be filed.

These provisions generally are valid in North Carolina, but our courts have declined to enforce them in some specific circumstances.  This summer the General Assembly created a new Chapter 1G that attempts to remove these limits when parties choose North Carolina as the forum state and North Carolina law as the applicable law.  The new legislation only affects provisions included in business contracts.  It defines a “business contract” as “a contract or undertaking, contingent or otherwise, entered into primarily for business or commercial purposes,” and it explicitly excludes “employment contracts” and “consumer contracts.” See 1G-2(1), -5(1).  Chapter 1G became effective June 26, 2017 and it applies to business contracts entered into before, on, or after that date.  These are the main effects of Chapter 1G:

North Carolina is among only a handful of states still recognizing the civil claims of alienation of affection and criminal conversation.  Known as the twin “heart balm” torts, these laws were devised long ago when women were regarded as a type of property and private morals were regular court business.  In short, these claims allow a person to sue his or her spouse’s paramour for money damages.  To prove “alienation of affection,” a plaintiff must show that the defendant wrongfully alienated and destroyed the genuine love and affection that existed between plaintiff and spouse.  (Although lovers typically are the target of these suits, a defendant could be another third person who has set out to create the rift.)  To prove criminal conversation, a plaintiff must show that the defendant had sexual intercourse with the plaintiff’s spouse in North Carolina during the marriage (but before separation).

In the other states that have not yet swept them into the dustbin of history, these claims do not often make their way to court.  North Carolina appears to be one of only a couple of states in which they are filed regularly and sometimes result in substantial settlements and large verdicts.

When a city, county, or other unit of local government is sued for negligence or other torts, it’s common practice for the unit’s attorney to file a motion asking the […]

Why it matters: Rule 9(j) very briefly.

Rule 9(j) of the North Carolina Rules of Civil Procedure requires plaintiffs filing medical malpractice complaints to include a specific allegation that the medical care and records have been reviewed by an expert who meets certain qualifications and who is willing to testify that there was a breach of the standard of care.  If a plaintiff fails to include the Rule 9(j) language before the underlying statute of limitations expires, the complaint “shall be dismissed.”  This special pleading requirement does not apply to other types of malpractice or to ordinary negligence actions.  Rule 9(j) was enacted as an attempt to curb frivolous medical malpractice claims.  But it has had the side effect of generating more than its fair share of appellate wrangling.  Since it was enacted in 1995, well over 100 published opinions have been issued interpreting its undefined provisions, reconciling it with other procedural rules, and determining when it does and does not apply.  [See an overview here.]   One group of those opinions has examined whether the complaint actually alleged a “medical malpractice action” in the first place, or whether it merely stated a claim for ordinary negligence.  If a claim is ordinary negligence, Rule 9(j) does not apply, even if the event occurred in a medical setting and the defendant was a “health care provider.”

Falling in a medical facility

Patient falls–either from standing or lying positions—have featured somewhat prominently in these cases.  Where the court has concluded that the fall involved a provider’s clinical assessment or judgment, the claims have been classified as medical malpractice.  See Sturgill v. Ashe Memorial Hospital, Inc., 186 N.C. App. 624 (2007) (failure to restrain fall-risk patient where restraints required medical order); Deal v. Frye Reg. Med. Ctr, 202 N.C. App. 584 (2010) (unpub’d) (failure to conduct requisite fall risk screening); see also Littlepaige v. US, 528 Fed Appx 289 (4th Cir. 2013) (unpub’d) (failure to secure patient who had been placed on “falls precaution”).

Last Friday the North Carolina Supreme Court issued an opinion that should prick up the ears of any physician, hospital, or healthcare facility that asks its patients to agree to binding arbitration in the event of a dispute.  In King v. Bryant (January 27, 2017), the court’s majority held that a physician was in a fiduciary relationship with a new patient at the time the patient signed an arbitration agreement at his initial intake.  The majority then concluded that, because the physician’s office did not take sufficient measures to disclose the nature and import of the agreement, but instead effectively buried it among other intake papers, the agreement was the product of breach of that fiduciary duty.

Background. The procedural history of the case is complex, but here are the essential facts and lower-court findings that led to the ruling:

In 2009, Mr. King was referred to a surgeon, Dr. Bryant, for a hernia repair.  While Mr. King was in the waiting area before meeting Dr. Bryant for the first time, the desk employee asked him to complete forms seeking his medical history and to sign several documents, among which was an arbitration agreement.  This was the routine practice in the office for new patient intake.  After meeting with Dr. Bryant, Mr. King signed another series of health-related and insurance forms.  Believing all the documents to be “just a formality,” he did not read them before signing.  During the surgery, Dr. Bryant injured Mr. King’s distal abdominal aorta, requiring substantial additional hospital treatment and causing significant injury to Mr. King’s right leg and foot.  Mr. King filed a medical malpractice action about two years later.