Articles in the Civil Law category - Page 3 of 5

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.

Just like other organizations, churches can sue and be sued.  Much of the time religious doctrine is not relevant to the dispute, such as when a contractor does a shoddy job building the sanctuary, when the church’s neighbor contests a boundary, or when the church’s van gets into a collision.  But sometimes disputes can hinge on, or at least involve, the organization’s beliefs, principles, creeds, or canons.  Usually that happens in internal disagreements—actions among the church and its members, officers, directors, or leaders; or between an individual assembly and the larger organizing body.  In such cases, the authority of secular courts to decide the outcome is sharply limited by the Free Exercise and Establishment clauses of the First Amendment to the United States Constitution.

Analyzing a church’s internal property dispute, the U.S. Supreme Court stated decades ago that

[F]irst Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice. If civil courts undertake to resolve such controversies in order to adjudicate the property dispute, the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern.

Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449 (1969).

When such conflicts arise in North Carolina civil actions, our courts must ask the following: May the court resolve the dispute using only neutral principles of law?  If so, the First Amendment does not prohibit the court from exercising jurisdiction.  If, instead, deciding the issue would entangle the court in ecclesiastical matters, the court must decline to intervene.  See Harris v. Matthews, 361 N.C. 265, 274 (2007).  “The dispositive question is whether resolution of the legal claim requires the court to determine or weigh church doctrine.” Smith v. Privette, 128 N.C. App. 490, 494 (1998).

North Carolina’s appellate courts have not, of course, had the opportunity to subject every type of internal church dispute to this test.  But there are plenty of examples of how it applies—many quite recent—and these are some of the key conclusions:

Issues of governmental immunity and public official immunity arise relatively often in North Carolina appellate opinions.  Within this important area of the law, however, there remain challenging questions.  Among them […]

**UPDATE: Effective July 21, 2017, Session Law 2017-158 expands the clerk’s civil contempt authority. The clerk now has the authority to exercise civil contempt in any instance when the clerk has original subject matter jurisdiction and issued the order that is the basis for the civil contempt in addition to any instance where a statute expressly provides for the clerk’s civil contempt authority.  See S.L. 2017-158, Sec. 11.  

Earlier this month, I had the pleasure of attending the elected clerk of superior court summer educational conference in Nags Head, NC.  The elected clerks gather annually this time of year to install new conference officers, attend educational sessions, and generally catch up on matters concerning the court system throughout the State.  I was invited by the clerk’s program committee to teach a session on civil contempt.  As part of my session, we identified the statutes that authorize the clerk to use civil contempt.  As noted in my previous post on the clerk’s contempt authority, the clerk only has the authority to use civil contempt where a statute expressly provides for it.  G.S. 5A-23(b).  Below is a list of statutes that authorize the clerk to use civil contempt.

READ POST "Drilling Down on the Clerk’s Civil Contempt Authority (September 28, 2016)"

My topic for today’s post is drawn from an email I received last week from a magistrate asking several great questions. Here’s what she wrote: “I was just thinking about […]

A minor injured through negligence or other wrongdoing may bring an action through a representative to recover damages for pain and suffering, permanent injury, and impairment of earning capacity. (A claim for reimbursement of the minor’s medical expenses typically belongs to the parents.) Although minors generally are legally incapable of binding themselves to contracts, the law allows a minor’s claims to be resolved through a settlement agreement. The settlement, however, is not enforceable against the minor unless it has first been investigated and approved by the court. Sigmund Sternberger Found., Inc. v. Tannenbaum, 273 N.C. 658, 677 (1968); Ballard v. Hunter, 12 N.C. App. 613, 619 (1971). Even if the settlement is arranged by a parent, guardian, guardian ad litem, estate administrator, or attorney, the minor cannot be bound absent prior court approval. Sell v. Hotchkiss, 264 N.C. 185, 191 (1965); In re Reynolds, 206 N.C. 276 (1934); Hagins v. Phipps, 1 N.C. App. 63 (1968). The rule applies not just to claims settled after an action is filed, but also to pre-litigation settlements including waivers of a minor’s right to sue. Creech v. Melnik, 147 N.C. App. 471, 475 (2001).

The purpose of the court’s review is to protect the interests of the minor. The investigation must focus on the minor’s welfare and fairness to the minor under the circumstances. See Redwine v. Clodfelter, 226 N.C. 366, 370 (1946) (minor’s welfare is the “guiding star”); Reynolds v. Reynolds, 208 N.C. 578, 631−32 (1935) (affirming “fair, just, and equitable” settlement).

We have Chapter 50B authorizing civil domestic violence protective orders to protect victims of domestic violence and Chapter 50C authorizing civil no-contact orders to protect victims of sexual misconduct and stalking who do not have the personal relationship with the perpetrator required for a 50B DVPO. Effective October 1, 2015, we now also have Chapter 50D authorizing permanent, non-expiring civil no-contact orders to provide additional protection to victims of sexual violence.

This Post was written by Professor Michael Crowell, UNC School of Government.

The question about fines for civil contempt is now resolved. Just over a year after the court of appeals allowed the use of a fine for civil contempt the General Assembly stepped in to say no, fines are not allowed for civil contempt, the only sanction is confinement until the person complies with the court order. In doing so, the legislature restored the law to what most thought it was before the appellate court ruling.

READ POST "NO FINES FOR CIVIL CONTEMPT (August 21, 2015)"