Almost all doctors have professional liability insurance. In fact, a doctor cannot get authorization to treat patients in hospitals unless they have a minimum of $1,000,000.00 of insurance for any negligent errors they commit. Many doctors have much higher coverage. If a doctor is an employee of the hospital system, the insurance is provided by the hospital. If the doctor is a member of a group practice, the insurance is purchased by the group. This means that if a doctor is held accountable for negligent errors, the payment to the injured patient comes from the insurance company, not from the doctor’s personal funds.
Most hospitals have made financial arrangements to pay for the damage caused by the negligence of its employees. Each hospital determines how much money it can afford to pay for claims without adversely affecting its financial stability. For individual claims above the set limit, the hospital will have one or more layers of insurance to cover payments for harm and injury to patients caused by the negligence of its employees.
If a case goes to court, the existence of insurance cannot be mentioned directly or indirectly. Under the law, the existence of insurance is not a relevant factor in determining whether a doctor, other healthcare provider, or hospital is negligent.
The rules are complex, but the bottom line is that if a patient receives a settlement or a jury verdict for injuries caused by the negligence of a doctor, healthcare provider or hospital, the medical expenses paid by a health insurance provider for care related to the negligent care must by reimbursed by the injured patient out of any money received, settlement or verdict. This is called Subrogation or Reimbursement and is a part of most employer-provided health care insurance. Medicare, Medicaid, and the NC State Employees Health Plan all require reimbursement in such situations. The requirements to reimburse medical expenses paid for care related to the negligence of a doctor, healthcare provider, or hospital are established by Federal and NC State statutes.
The basic definition of negligence is a failure to be reasonably careful under the circumstances that exist at the time. Negligence is not intentional misconduct or wrongdoing. It does not require an evil motive or a gross mistake. In general, a person is liable for negligence if their failure to be reasonably careful results in harm or injury to another person. For example, a driver who runs a red light or stop sign, or who is driving too fast for the circumstances and causes an accident which injures another person is negligent, even though the accident was not intentional or the result of driving while impaired.
Medical negligence is defined in three different ways. A doctor, healthcare provider, or hospital is negligent if they injure a patient because they failed to be reasonably careful and diligent, failed to use their best judgment (make the best use of information and knowledge available), or failed to meet the appropriate standards (medical rules) of practice that apply to the situation. Medical negligence occurs when doctors, healthcare providers, or hospitals fail to follow the rules set by law and by the medical profession itself, based upon current medical knowledge at the time.
Most people believe that nobody is perfect. People make mistakes, say the wrong thing, or make poor choices everyday. For hundreds of years, the law has recognized the truth that nobody is perfect and has never held people accountable for this undeniable reality of human existence. The law simply says that we must act with reasonable care and diligence as we go through life. In some things, reasonable people can make different decisions or do things in different ways and neither be wrong or negligent. The law imposes liability or responsibility when our decisions, actions, or choices are no longer reasonable or prudent. In everyday life, it is easy to understand that pulling out to pass without first looking in the rearview mirror or turning left into the path of an oncoming vehicle is not reasonable, is not good judgment, and amounts to "follow the rules of the road". Such actions amount to negligence and such a driver will be liable for any injury or harm that results from such driving.
In medical situations, what is considered reasonable is based upon medical knowledge and information that a doctor, healthcare provider, or hospital is expected to know as a result of their education, training and professional experience and current medical literature. The law requires medical professionals to use their best judgment in the care and treatment of patients. This means they must make wise use of what they know to be reasonable medical choices and what they know (or should know) about the patient’s medical situation. The law requires doctors, healthcare providers, and hospitals to follow accepted standards of practicing medicine, that apply to the care of each patient. If they do not, they are negligent according to the law of North Carolina and should be held accountable (liable) for such failures.
Good people, good doctors, good healthcare providers and good hospitals can all be negligent. Negligence has nothing to do with a lack of character, an unpleasant personality, or a good bedside manner. Nobody is immune from negligence. Negligent medical care on one day, provided to one patient is not excused by good care given to other patients on other days. That’s why people buy insurance to cover the financial responsibility for harm and injury caused to others as a result of the one time they are negligent. Just as driving 1,000,000 miles without an accident does not excuse a failure to stop for a traffic signal, neither does the successful care of thousands of other patients excuse a doctor’s one time failure to provide reasonable care, or to use best judgment or to meet the medical standards.
Nobody likes the idea of having to admit they made a mistake that harmed someone else. There are a lot of reasons for such reluctance; but when "push comes to shove” most people will acknowledge that they failed to use reasonable care in such a situation. Then they expect their insurance company to provide fair compensation to the injured person. After all, that’s why they have insurance.
When an insurance company admits that its insured was negligent, the company will have to pay out money. The best result for the insurance company is to pay no money, so they commonly deny that their insured was negligent (or that the harm or injury was somehow not their fault). If the company must pay out money, it will do all that it can to make the amount paid as small as possible. For them, it’s just business. They are very good at paying as little as possible. That’s why getting the help of an experienced attorney can make a big difference in what you receive for your injury.
You only get one settlement for each successful claim you make. Make sure it is the right settlement for your situation before you sign any papers or cash any checks offered to you by an insurance company or a hospital in settlement of your claim. Once the paper is signed or the check is cashed the claim is gone forever—no matter what happens later. Make sure you understand the nature and extent of your injury and what the future will be in connection with the injury before you sign documents or cash checks. Sometimes it takes a year or more to fully know how well you will recover from an injury. Don’t be in a hurry! An experienced attorney can make a difference.
You have a specified time limit to assert a claim for personal injury or medical negligence (malpractice). It’s called the Statute of Limitations. If you fail to start legal action before the time limit expires, you will be forever prevented from taking legal action. It’s never a good idea to wait until the time is about to expire!’'
For injury or harm caused by another’s negligence, the general rule in North Carolina is that you have 3 years from the date when the claim arose. A claim usually arises on the date of the negligent event—a motor vehicle accident or a botched operation. There are some technical exceptions, but they must be explored by an experienced attorney.
If death results from a negliget act or negligent medical care (called a "wrongful death"), the estate of the person generally has 2 years from the date of death to start legal action. The law requires that an estate be opened in the Court House and that an administrator or executor be appointed. Only an administrator or executor of an estate has the legal authority to assert a claim for wrongful death. The rules are complicated and an experienced attorney is usually needed.
A child's claim exists until the child’s 19th birthday, or three years from the date of the negligent medical act, whichever is later in time.
The current law in NC limits the amount of noneconomic damages an injured patient can recover for injury as a result of medical negligence. This includes such things as physical pain and emotional suffering, scarring, permanent loss of a part of the body, the loss of the ability to walk—essentially those aspects of harm that cannot be measured in terms of money lost as a result of the negligent injury. It does not apply to lost future income that can be proven, future medical expenses that can be proven or other economic losses. For a person who is not working and has health care insurance coverage, Medicare or Medicaid, the value of a life changing claim can be severely limited by the cap on noneconomic damages. This significant change in the law was passed by the Legislature in 2011 for the benefit of healthcare providers and their insurance companies.
A doctor will not lose his/her license to practice medicine just because he/she is sued for medical negligence.
A recognized risk of a procedure or treatment is an unwanted outcome that can happen during or after the procedure or treatment even if the healthcare provider used reasonable care, used best judgment and complied with applicable standards of practice. A postoperative infection is an example of a recognized risk of surgery. An experienced medical malpractice attorney can quickly determine if an unwanted outcome is a recognized complication or the result of negligence.
A complication is an unexpected condition or development that first becomes apparent after treatment is begun, but which is not directly related to the original problem for which treatment is intended. Unusually dense scarring from previous surgery or injury may be a complication.
Healthcare providers will often wrongly describe an injury caused by negligence as a “complication” when they give an explanation of what and how treatment turned out differently than expected. If the injury occurred because the doctor, healthcare provider, or hospital failed to use reasonable care and diligence, to use best judgment, or to comply with applicable standards of medical practice it is not a complication—it is negligence!
For over 2000 years, the first rule of medicine has been that the doctor should cause no harm to the patient. This concept is the essence of the Hippocratic Oath from ancient Greece. It means that a doctor or healthcare provider should not do things that could harm, or fail to do what would help the patient. At the end of this ancient oath, it says that if a doctor failed to keep the oath, he was no longer entitled to the respect of others.
Electronic Health Records often create more problems than they solve. They generate page after page of medical records which often fail to focus on patient’s real problem. A recent survey of over 13,000 nurses found that 85% of nurses who must use EHR’s when caring for patients consider the programs to be “continually flawed” and that over 90% of nurses in the survey felt that they negatively impacted on communications between a nurse and other members of the health care team and between the nurse and their patients.
In NC, the law requires that a driver have only $30,000.00 of liability coverage for motor vehicle accidents. A trip to the Emergency Room alone can cost as much as $7,500.00. If surgery is necessary, the bill can easily climb to more than $20,000.00. A solution is to purchase Uninsured and Underinsured Motorist coverage so that your insurance company will make more money available to cover your claim, up the amount of coverage you add to your own policy.
Medical Payments coverage pays your accident related medical bills regardless of who is responsible for the accident. As long as you can show receipts for medical expenses related to care required as a result of a motor vehicle accident, your insurance company will pay you the amount of the bills you incur up to the specified limit in your policy. A trip to the Emergency Room can easily cost $5000-$7500. It makes sense to purchase at least $10,000.00 of Medical Payments coverage when you buy your car insurance.