Miller Monroe & Plyer is pleased to announce that it obtained a $4.9M settlement on behalf of a girl with a non-verbal form of autism and her family in January of 2022.  This verdict was highlighted publicly for the first time in the November 21, 2022, edition of Lawyers Weekly.

In 2016, the 15-year-old girl was placed in an unlicensed alternative family living home and suffered life-threatening injuries at the hands of her caregivers, resulting in the child being hospitalized for eight weeks and undergoing multiple surgeries.  MMHP pursued multiple claims on behalf of the girl and her family in two actions – one in state court and one in federal court.  The state action included claims against the local management entity (“LME”) and three provider agencies.  The federal action included six claims – five claims alleging violations of 42 U.S.C. 1983 and one claim alleging violations of Title VI of the Civil Rights Act, which were asserted against the LME that made the placement and seven of the LME’s employees.

Attorneys Jeff Monroe, William Plyler, and Jason Miller represented the plaintiff, with support throughout the six-year representation by paralegal Jennifer Garvey.

Click to Read Full Article: “Autistic girl, family awarded $4.9M settlement after abuse.”

The post Jeffrey R. Monroe Leads Team in Obtaining $4.9M Settlement for Girl with Autism appeared first on Miller Monroe Holton & Plyler.

The STCA covers claims which arise “as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.” N.C.G.S. §143-291(a). The STCA also covers tort claims against any county board of education or city board of education “as a result of any alleged negligent act or omission of the driver . . . of a public school bus.” N.C.G.S. §143-300.1.

The STCA applies only to claims of negligence. It does not bar lawsuits against the state or state employees for other types of claims, such as breach of contract or violation of constitutional rights.

STCA claims are filed with the N.C. Industrial Commission. The State is represented by the N.C. Attorney General. A STCA claimant does not have a right to a jury trial. Rather, claims are heard by a deputy commissioner, with a right to appeal to the full Commission. Upon receipt of a decision and order from the full Commission, either the claimant or the State may appeal the decision to the N.C. Court of Appeals.

STCA claims must be filed within three years after the accrual of the claim, or if death results from the accident, the claim for wrongful death must be filed by the personal representative of the deceased within two years after death.

A major distinction between a STCA claim and a regular tort lawsuit is the cap on damages in a STCA claim. “The maximum amount that the State may pay . . . to any one person arising out of any one occurrence . . . shall be one million dollars ($1,000,000).” N.C.G.S. §143-299.2. A tort lawsuit filed in state or federal court has no damage cap. Other than the damage cap, the damages recoverable in a STCA claim are essentially the same as in a personal injury lawsuit – compensation for medical bills, lost wages, permanent injury and scarring, and pain and suffering.

Miller Monroe Holton & Plyler has successfully prosecuted numerous STCA claims, including a recent recovery of $750,000 for a motorcyclist injured by the negligence of a public school bus driver (see photo of the motorcycle above). We also represent people who are injured by the negligence of federal employees, pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. 28 U.S.C. §1346(b), §1402(b), §2401(b), and §§2671-2680.

The post Understanding the North Carolina State Tort Claims Act appeared first on Miller Monroe Holton & Plyler.

If you’re an industrial or construction worker, you know that you must work carefully in order to stay safe and keep your co-workers safe. But you may not be prepared for the time when someone else’s mistake jeopardizes your safety and causes you to be injured. When it comes to on-the-job injuries, it’s critical to take the right steps not only to help you recover but also to protect your interests if a claim or lawsuit becomes necessary.

Here are the first five things you should do when you are injured on the job, even before you contact a personal injury attorney.

#1: Create a record of the incident.

When you’re injured, the very first thing you should do (aside from seeking on-site medical attention as needed) is to report your injury to your employer. Most companies have a standard incident report that you will be prompted to fill out. Not only will this create an early record of your injury, but by writing down the incident right after it happens, you’ll be more likely to accurately capture the details. Keep in mind that your memory and recollection will fade over time, so it is best to capture the incident details right away. Make sure you obtain a copy of your incident report from your employer and keep it on file. If you work for a subcontractor, make sure that your employer notifies the general contractor and owner of the project.

#2: Seek medical attention.

It is critical that you seek any and all medical treatment you need. If you visit an emergency room, pay attention to the doctor’s recommendations when you are released, and follow the doctor’s instructions. It may be tempting to hope that your injury will get better on its own, but you should seek the care recommended by your doctor. Visit your primary care doctor and seek specialist referrals if appropriate.

Receiving the necessary medical treatment will help you heal as much as possible, which should always be most important. However, receiving consistent medical treatment carries the added benefit of creating a link between your injuries and the accident, which is essential for a legal claim. While you may not recoup all of your expenses through a lawsuit, it is nonetheless critical to seek the right care, right away.

#3: Locate witnesses.

Eyewitnesses to your accident will be invaluable if you choose to pursue a claim. Make a list of everyone who was on the scene during the incident and gather their names and contact information. Find out the witnesses’ employers and supervisors. If possible, ask them to provide a short, written statement for you about what they saw, in as much detail as possible.

#4: Track your medical treatment.

Although your attorney will likely order your medical records, it is advisable to keep track of your medical visits, notes, and bills as early as possible. Keeping a file of your incident-related medical records will not only help your attorney in preparing your case but will also keep you informed on your condition and ensure that you are abiding by your providers’ orders. Your employer’s workers compensation insurance carrier may pay for medical treatment. If so, you should cooperate with their efforts to coordinate treatment.

#5: Keep a diary.

In addition to your employer incident report and official medical records, keep your own unofficial but detailed notes on how your condition progresses over time. Examples of items to track include:

–        The number (and dates) of missed work days;

–        Pain and other physical symptoms;

–        Medications you’re taking, and whether they are helping your condition;

–        Healing of broken bones, wounds, and other incident-related conditions;

–        Your doctors’ appointments and what you discussed at each; and

–        Any other illnesses or aggravating conditions you are experiencing.

By tracking your progress, you will create a detailed picture of how your incident has affected you over time, which will help you build your case later – especially when it comes to describing how your accident has impacted your quality of life.

At Miller Monroe Holton & Plyler, we have years of experience helping individuals who’ve been seriously injured in industrial plants and on construction sites. This experience allows us to craft compelling cases on behalf of injured individuals, seeking compensation for medical treatment, lost income, and pain and suffering. Contact us if you’ve been seriously injured and would like help pursuing a fair recovery.

The post Five Steps to Take If You’re Injured in a Construction Accident appeared first on Miller Monroe Holton & Plyler.

Ancillary to Plyler’s lawsuit, Dell litigated a dispute with the North Carolina Department of Revenue, which was adjudicated by the International Institute for Conflict Prevention and Resolution.  In a 2-1 decision, the Institute agreed with the claims in Plyler’s lawsuit and determined that the maintenance agreements were not in fact taxable under North Carolina law.   With this determination in hand, Plyler and his co-counsel negotiated a settlement with Dell under which it was required to refund taxes illegally collected, up to the total amount of $13,000,000.00, from any individuals that submitted a claim.  Ultimately, the claims made by consumers resulted in Dell being forced to refund $3,014,809 to consumers and another $1,850,00.00 in attorneys’ fees and expenses.

Fredric Ellis, Edward Rapacki, and Joseph Makalusky of Ellis & Rapacki in Boston were Plyler’s co-counsel on this case.

The attorneys at Miller Monroe Holton & Plyler have significant experience bringing legal actions aimed at protecting consumers from corporate wrongdoing.  If you believe a corporation is illegally billing or otherwise taking advantage of consumers, please call our office today to discuss whether Miller Monroe Holton & Plyler might be able to assist.

This article does not establish an attorney-client relationship and must not be construed as legal advice.

The post Plyler Recovers Over $3M for North Carolina Consumers appeared first on Miller Monroe Holton & Plyler.

If you are involved in personal injury litigation, it is important to understand the rights of your insurers to claim a portion of any settlement you recover.

In North Carolina, privately-funded health insurance policies are barred from seeking reimbursement from a personal injury settlement.  Said differently, private health insurers cannot seek reimbursement for payments made for medical treatment when there is a recovery from an at-fault party.  This is known as the anti-subrogation rule.

However, some plans are not governed by this general rule, and as such, insurers will attempt to claim a portion of your personal injury settlement.  Many large companies provide their employees with health plans that are self-funded.  Plans like these are authorized by the Employee Retirement Income Security Act of 1974, known as “ERISA.”  ERISA is a federal law that sets minimum standards for some pension and health plans in private businesses in order to provide protection to individuals within those plans.  Because the plans are funded by the employers themselves, the plans are exempt from North Carolina anti-subrogation laws and as a result, can seek reimbursement from an at-fault party in a personal injury settlement.

A valid subrogration right can drastically impact how much an injured party is entitled to recover from a personal injury settlement.  Any subrogation rights in an ERISA plan will attach to the entire settlement, and in many cases, must be paid before any settlement funds are disbursed to the injured party.  It is possible to negotiate the amounts of an ERISA reimbursement, but the success of such negotiation depends on such factors as the language of the plan, the amount of medical expenses the plan paid, and whether the injured party is still covered by the plan.

A knowledgeable and experienced personal injury lawyer can work to ensure that you, as the injured party, receive the benefit of the settlement rather than the ERISA-qualified insurance plan.

This article does not establish an attorney-client relationship and must not be construed as legal advice.

The post How ERISA-funded health plans can affect your rights appeared first on Miller Monroe Holton & Plyler.

DWI Cases – Unique Cases 

Personal injury and wrongful death cases that involve drunk driving (driving while impaired) are a unique subcategory of personal injury/wrongful death cases.  Drunk drivers do not enjoy certain protections under the civil laws that law-abiding citizens enjoy.  For example, in the typical tort case, the victim may only recover compensatory damages against the defendant.  In a case where the defendant was driving while impaired, the victim may recover both compensatory damages and punitive damages.  (See explanation of difference in compensatory and punitive damages below).  Furthermore, there is no cap on the amount of punitive damages that may be awarded in a DWI case, as opposed to non-DWI cases where punitive damages are capped at three times the amount of compensatory damages or two hundred fifty thousand dollars ($250,000), whichever is greater.  N.C.G.S. 1D-25(b); 1D-26.   Also, a judgment debtor can discharge most types of civil judgments in bankruptcy.  However, when the debt represents a judgment arising from a DWI, the judgment cannot be discharged in bankruptcy.  11 U.S.C. 523(a)(9).

Compensatory Damages Where Victim Survives

Compensatory damages compensate a victim for the damages sustained by the victim.  Compensatory damages include medical expenses incurred (past and future); lost income (past and future); physical pain and emotional suffering (past and future); permanent injury or scarring, and loss of use of a body part.

Compensatory Damages Where Victim Is Killed

If someone is killed by a drunk driver, the compensatory damages recoverable under the North Carolina Wrongful Death Act, N.C.G.S. 28A-18-2 et seq., are set forth in N.C.G.S. 28A-18-2(b).  It provides,

Damages recoverable for death by wrongful act include:

• Expenses for care, treatment and hospitalization incident to the injury resulting in death;
• Compensation for pain and suffering of the decedent;
• The reasonable funeral expenses of the decedent;
• The present monetary value of the decedent to the persons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected;

1. Net income of the decedent,
2. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered,
3. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered.

Punitive Damages Also May Be Recovered

Punitive damages (also referred to as exemplary damages) may also be recovered by the victim.  Where the victim is killed, punitive damages may be recovered by the family of the decedent.  N.C.G.S. 28A-18-2(b)(5).  Punitive damages are imposed for the purpose of punishing the impaired driver and deterring the impaired driver and others from driving impaired in the future.  Though punitive damages may be imposed upon an impaired driver, punitive damages may not be imposed upon the estate of an impaired driver.  See, Harrell v. Bowen, 362 N.C. 142, 655 S.E. 2d 350 (2008).  Consequently, when an impaired driver dies in a collision, his estate typically will not be subject to punitive damages for the reckless conduct of the deceased driver.  However, family members or other parties may be subject to punitive damages for their own reckless conduct.

Prospective Defendants in a DWI Case

In every civil case involving driving while impaired, potential claims against multiple parties should be investigated and evaluated.  Potential defendants include the impaired driver, the owner of the vehicle driven by the impaired driver, family members of the impaired driver, the employer of the impaired driver, legal entities and individuals that provided or sold alcoholic beverages to the impaired driver, social hosts that provided alcoholic beverages to the impaired driver, and legal entities and individuals that aided or abetted the impaired driver in some way.  With respect to each prospective defendant, the existence of liability insurance and policy coverage limits must be determined.

Locating the Right Attorney

When a family member has been seriously injured or killed by an impaired driver, the primary focus of the family typically is on the injured or deceased person.  It may be difficult to think about pursuing a civil case soon after such a traumatic event.  However, because investigative steps need to be undertaken as early as possible, the search for an attorney should not be delayed any longer than necessary.

Finding an experienced attorney who specializes in this type of case, who is aggressive but also is ethical, and who is the right fit personality-wise and temperament-wise, is critical.  A good way to find such an attorney is to contact an attorney in your community who you know and trust.  That attorney can then give you the names of one or more attorneys who specialize in this type of case.

Do your online research about the recommended attorney or attorneys, and then make contact and schedule a meeting.  Bring a trusted family member or friend with you to the meeting if you feel the need for assistance.  It is best not to make a decision about an attorney at the first meeting.  If the attorney pressures you in any way to sign a contract at the first meeting, consider this a red flag.  The decision is too important to be rushed.  Discuss your impressions with other family members and friends and make sure you are comfortable with the attorney.  Do not discuss the facts of the case with others.  All communications with the attorney must remain confidential.

Think about your decision for a day or two.  If you are convinced that the attorney is the right fit for you, let the attorney know this.  A contingent fee contract and other relevant documents can then be executed.

The Relationship Between The Criminal DWI Homicide Case And The Civil Wrongful Death Case

Contacting The District Attorney

A drunk driver who kills someone may be charged with multiple criminal offenses, including second degree murder.  The local district attorney prosecutes the criminal case and protects the interest of the state.  The private attorney retained by the administrator or executor of the decedent’s estate prosecutes the civil wrongful death case and protects the interest of the decedent’s family. The interests of the state and the family usually are aligned fairly closely.   However, there are times when those interests may diverge.  It is important to have an experienced attorney on board to advocate for the family.

The attorney representing the family must recognize that the district attorney is in charge of the criminal case and must stay out of the way of the district attorney.   This said, most experienced district attorneys give great deference to the wishes of the decedent’s family in deciding the appropriate disposition of the criminal case.  But when push comes to shove, the district attorney (along with the judge) calls the shots in the criminal case.  The family’s attorney should facilitate communication between the district attorney and the family to make sure the family’s interest is protected.

A good working relationship between the district attorney, the investigating officers, and the family’s attorney is critical to the successful prosecution of the civil case.  Most law enforcement agencies have specially trained investigators and accident reconstruction experts assigned to investigate vehicular homicide cases.  These officers and experts gather, document, and preserve the evidence.  They are key witnesses in the criminal case.  They also are key witnesses in the civil wrongful death case.

One of the first steps the family’s attorney must take after being retained by the family is to contact the district attorney to notify him or her of the attorney’s involvement.  In a DWI homicide case, the investigating officers typically will not speak with a private attorney about the case without prior authorization from the district attorney.  Most district attorneys and assistant district attorneys want to cooperate with the family’s attorney.  They know that the family is devastated by the senseless death of their loved one, and they want to do everything possible to help the family succeed in the civil action, provided the cooperation does not compromise the criminal prosecution in any way.

The district attorney must trust the family’s attorney to use good judgment in how and when to use the information and documentation from the criminal investigation.  If there is no trust, the district attorney will provide very little information.

Preparation Before Meeting With Investigating Officer

The family’s attorney will attempt to complete some basic investigation of the case before he or she meets with the investigating officer for the first time.

Sometimes all of this documentation is not available before meeting with the officer, but often it is.

Ideally, the preliminary steps undertaken prior to meeting with the investigative officer will include the following:

• Obtain copy of the collision report
• Interview witnesses listed on the collision report
• Interview other witnesses you learn about from clients and listed witnesses
• Review all insurance policies to which you have access that may provide coverage
• Go to the scene of the collision
• Photograph the scene of the collision
• Download Google photos and maps of the scene
• Obtain certified copies of every document in the criminal file from the clerk’s office, including the bond and conditions of release
• Obtain a certified copy of the defendant’s driving record from DMV
• Obtain a copy of the defendant’s criminal record
• Obtain a copy of the 911 tape
• Search and download all news accounts of the collision
• Download pattern jury instructions for all potential claims
• Examine the vehicles involved in the collision
• Download and preserve all social media information for the drunk driver, the family of the drunk driver, the victim and his family, and all prospective defendants
• Instruct clients to cease posting on social media and explain to clients that postings on social media often wind up being admitted as evidence in court proceedings
• Have an engineer examine the electronic data recorder from the vehicles, photograph the vehicles, document the scene of the collision

Meeting With The Investigating Officer

Once the district attorney gives the family’s attorney the green light to meet with the investigating officers, the attorney will arrange a meeting with the officers.  The investigation may still be in the early stage, with officers waiting for lab results and autopsy results.  Even though to may be early in the investigation, it is best to go ahead and meet with the officer.

Before meeting with the officer, the attorney will have already obtained copies of the documentation publicly available, as well as information and documentation produced by the family.  The attorney can review this information and documentation with the officers.  The attorney may even be able to assist the officers by providing some information.

The procedure for obtaining documentation from the officers and the district attorney will vary depending on the jurisdiction and the level of trust and cooperation between those officials and the family’s attorney.  Ideally, full access to all documentation to the family’s attorney will be provided at some point.  This documentation, as well as information from experts hired by the attorney, is critical to the attorney’s investigation of the potential direct claims against the impaired driver, or his estate.  This documentation is also critical to the attorney’s investigation of the potential claims against the other prospective parties to be included as defendants in a civil action.

The post The Impact of Drunk Driving in Personal Injury and Wrongful Death Cases appeared first on Miller Monroe Holton & Plyler.

Personal Injury Liability – Principles of Law

By William Plyler

Personal Injury: Liability

There are two parts to a personal injury claim – liability and damages.  Both parts must be proven in order for an injured person to recover.   This article focuses on the issue of liability.  The legal basis for liability in most personal injury cases is negligence.

The law that applies in almost every negligence case in North Carolina is set forth in the North Carolina Pattern Jury Instructions.  The Pattern Jury Instructions constitute the law that North Carolina trial judges read to juries to guide juries in their deliberations.  The terminology of the pattern jury instructions can be stilted and legalistic; however, it constitutes the black letter law that applies in most cases.  Consequently, this article tracks the language of the pattern instructions in order to provide the reader with the most accurate account of the law in North Carolina.

Negligence and Negligence Per Se

Negligence refers to a person’s failure to follow a duty of conduct imposed by law.  Every person is under a duty to use ordinary care to protect himself and others from injury.  Ordinary care means that degree of care which a reasonable and prudent person would use under the same or similar circumstances to protect himself and others from injury.  N.C.P.I. MV 102.11, citing Pinyan v. Settle, 263 N.C. 578, 139 S.E. 2d 863 (1965); Barnes v. Caulbourne, 240 N.C. 721, 83 S.E. 2d 898 (1954); Williamson v. Clay, 243 N.C. 337, 90 E.E. 2d 727 (1956).  Every person is also under a duty to follow standards of conduct enacted as laws for the safety of the public.  A standard of conduct established by a safety statute must be followed.  A person’s failure to do so is negligence in and of itself – negligence per se.  N.C.P.I. Civil 102.12.

Proximate Cause

A plaintiff in a personal injury case not only must prove that the defendant was negligent, but also that the negligence was a proximate cause of the injury.  Proximate cause is a cause which in a natural and continuous sequence produces a person’s injury, and is a cause which a reasonable and prudent person could have foreseen would probably produce such injury or some similar injurious result.  N.C.P.I. Civil 102.19, citing Loftis v. Little League Baseball, Inc., 169 N.C. App. 219, 609 S.E. 2d 481 (2005).  There may be more than one proximate cause of an injury.  Therefore, the plaintiff does not have to prove that the defendant’s negligence was the sole proximate cause of the injury.  Rather, the plaintiff must prove only that the defendant’s negligence was a proximate cause of the injury.  Id. 

Burden of Proof: Greater Weight of the Evidence

Another important principle of law that applies in negligence cases (as well as every other type of case) is the burden of proof.  The easiest way to explain burden of proof is to relate it to the manner in which juries do their work.  Juries decide cases by answering questions, called issues.  The issues are set forth on a verdict sheet that the trial judge gives the jury right before the jury begins its deliberations.

In most negligence cases, the first issue the jury will be asked to decide is “Was the plaintiff injured by the negligence of the defendant?”  The trial judge typically will instruct the jury about the burden of proof as follows.

“In this case you will be called upon to answer questions – also called issues.  As I discuss each issue I will tell you which party has the burden of proof.  The party having that burden is required to prove, by the greater weight of the evidence, the existence of those facts which entitle that party to a favorable answer to the issue.

The greater weight of the evidence does not refer to the quantity of the evidence, but rather to the quality and convincing force of the evidence.  It means that you must be persuaded, considering all of the evidence, that the necessary facts are more likely than not to exist.

If you are so persuaded, it would be your duty to answer the issue in favor of the party with the burden of proof.  If you are not so persuaded, it would be your duty to answer the issue against the party with the burden of proof.”  N.C.P.I. Civil 101.10.

The trial judge will then instruct the jury that the plaintiff has the burden of proof with respect to the first issue.  In some negligence cases, a favorable decision for the plaintiff on this first issue constitutes a resolution of the liability question in the plaintiff’s favor.  In these cases, the jury then proceeds to answer the damage issue.  However, in some negligence cases, this is not the case.  In some negligence cases, the defendant asserts the affirmative defense of contributory negligence.  If contributory negligence is alleged, the question of liability remains unresolved until the contributory negligence issue also is answered in the plaintiff’s favor.

Contributory Negligence

If the first liability issue is resolved in the plaintiff’s favor, the jury will proceed to answer the second liability issue (the contributory negligence issue).  This issue typically reads as follows:  “Did the plaintiff, by his own negligence, contribute to his injury?”  N.C.P.I. Civil 104.10.  On this issue, the burden of proof is on the defendant.  This means that the defendant must prove, by the greater weight of the evidence, that the plaintiff was negligent and that such negligence was a proximate cause of the plaintiff’s own injury.  The test for what constitutes negligence is the same as previously described and is the same for the plaintiff as for the defendant.  If the plaintiff’s negligence joins with the negligence of the defendant in proximately causing the plaintiff’s injury, it is called contributory negligence and the plaintiff cannot recover (unless the defendant was grossly negligent, or unless the defendant had the last clear chance to avoid the accident).  N.C. P.I. Civil 104.10.

Willful or Wanton Conduct (Gross Negligence) – Used to Defeat Contributory Negligence

In cases where there is evidence of willful and wanton conduct by the defendant, the plaintiff may be able to recover even if the plaintiff was contributorily negligent.   In such cases, this issue typically will appear as the third issue on the verdict sheet submitted to the jury.  This issue typically reads as follows:  “Was the plaintiff injured by willful or wanton conduct of the defendant?”  N.C.P.I. Civil 102.86.  The jury reaches this issue only if it already has answered the first issue as to the defendant’s negligence “yes” in favor of the plaintiff and the second issue as to the plaintiff’s contributory negligence “yes” in favor of the defendant.

On this third issue, the issue of the defendant’s willful or wanton conduct, the burden of proof is on the plaintiff.  This means that the plaintiff must prove, by the greater weight of the evidence, that the defendant engaged in willful or wanton conduct and that such conduct was a proximate cause of the plaintiff’s injury.

An act is willful if the defendant intentionally fails to carry out some duty imposed by law or contract which is necessary to protect the safety of the person or property to which is it owed.  N.C.P.I. Civil 102.86, citing Abernathy v. Consolidated Freightways Corp., 321 N.C. 236, 362 S.E. 2d 559 (1987).

An act is wanton if the defendant acts in conscious and intentional disregard of and indifference to the rights and safety of others.  N.C.P.I. Civil 102.86, citing Yancy v. Lea, 354 N.C. 48, 54, 550 S.E. 2d 155, 158 (2001) ( Hinson v. Dawson, 244 N.C. 23, 28, 92 S.E. 2d 393, 397 (1956)); cf. Bullins v. Schmidt, 322 N.C. 580, 369 S.E. 2d 601 (1988) (defining gross negligence as wanton conduct done with conscious or reckless disregard for the rights and safety of others).

Last Clear Chance – Used to Defeat Contributory Negligence

Another circumstance where the plaintiff may recover, even where the plaintiff was contributorily negligence, is where the exception called the Last Clear Chance Doctrine applies.  In cases where the evidence supports submission of this issue to the jury, the issue typically is submitted as follows:  “Did the defendant have the last clear chance to avoid the plaintiff’s injury?”  N.C.P.I. MV 105.15.  This issue, when applicable, typically will be the third liability issue, and will follow the contributory negligence issue.

On the last clear chance issue, the burden of proof is on the plaintiff.  This means that the plaintiff must prove, by the greater weight of the evidence, the following four things:

First, that the plaintiff negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care.

Second, that the defendant knew, or by the exercise of reasonable care should have discovered, the plaintiff’s position of peril and inability to escape from it.

Third, that the defendant had the time and means to avoid injury to the plaintiff and failed to exercise reasonable care to do so.

And Fourth, that such failure proximately caused the plaintiff’s injury.  N.C.P.I. MV 105.15.

This article does not establish an attorney-client relationship and must not be construed as legal advice.

The post Understanding liability basics: A handbook of negligence claims, defenses, and burdens of proof. appeared first on Miller Monroe Holton & Plyler.

In the case, a plaintiff patient was undergoing cardiovascular surgery and, while opened up and with surgical tools inside her body, fell off the operating table and sustained serious injuries including concussion, double vision, bruises, and emotional trauma.  The Plaintiff filed a complaint alleging that Defendants Duke and Southeastern Medical Center acted negligently by retaining physicians and nurses who allowed the accident to occur.  On appeal, the Court considered whether Plaintiff’s claim sounded in ordinary negligence, or whether it took the form of a malpractice claim that demanded more stringent pleading standards which, if not met, would result in the dismissal of the plaintiff’s complaint.

In North Carolina, the distinction between ordinary negligence and medical malpractice claims is determined by statute.  A medical malpractice claim is a “civil action for personal injuries or death arising out of the furnishing or failure to furnish professional services in the performance of . . . health care by a health care provider.”  North Carolina General Statute Section 90-21.11(2)(a).  The term “professional services” is not defined by statute, but North Carolina courts have referred to it as an act arising out of some vocation, calling, occupation, or endeavor that involves some level of specialized knowledge or skill: a skill that is intellectual rather than manual or physical.  Conversely, ordinary negligence claims in the medical setting arise from acts or omissions that do not implicate some specialized assessments or clinical judgments.  Rather, these types of acts or omissions are measured from a standard of ordinary judgment.  In other words, the inquiry is whether the typical, reasonable person have acted in that manner under the same or similar circumstances.

The Court went on to explain that in the case of a patient falling off an operating table, the dispositive factor in determining whether the case falls under medical malpractice or ordinary negligence is “whether the decisions leading up to the fall required clinical judgment and intellectual skill.” Thus, if evidence shows the fall occurred because physicians failed to properly use restraints, the claim sounds in medical malpractice.  On the other hand, if the evidence shows the patient fell off a gurney because the physicians did not remain in close proximity to the patient or stepped away from the patient, leaving her unattended, the claim would be based in ordinary negligence.  In the first instance, only a person possessing specialized medical knowledge would know the proper use of restraints.  In the second instance, however, the reasonable, ordinary person would know to never leave a patient unattended while minimally conscious or unconscious.

In the instant case, the Court determined the plaintiff’s claim fell into the category of ordinary negligence rather than medical malpractice.  The factual allegation that the plaintiff fell off the operating table while unconscious, open, and with surgical tools in her body was not the type of accident that would result from an action requiring specialized medical knowledge, skill, or judgment.  Rather, it was avoidable by the use of ordinary care, in particular, properly monitoring and controlling the plaintiff’s body during surgery, and properly supervising nurses and other staff throughout the process.  Even though the plaintiff’s complaint employed language that appeared related to a medical malpractice claim, the Court concluded the underlying facts pointed to ordinary negligence – namely, that the defendants failed to “use good judgment, reasonable skill, and diligence in the treatment of [the] Plaintiff.”

For the Court’s full opinion, click here.

The post Case Law Update: Negligence Claims in the Medical Context appeared first on Miller Monroe Holton & Plyler.