Frequently Asked Questions

The frequently asked questions and answers set forth below are intended to provide general information only and are not intended to provide legal advice about a particular case. It is always best to consult with an attorney to get answers to questions about your specific situation.

What is Medical Malpractice?

When a doctor or healthcare provider causes injury or death, that otherwise would not occur, because they were not being careful, it is called medical negligence or medical malpractice. Both terms mean the same thing. If you break down the word "mal-practice", you get "bad practice". (Medical negligence has three legal definitions in North Carolina.)

The longstanding law in NC states that doctors and healthcare providers have 3 legal duties when caring for patients.

  1. They must use reasonable care and diligence in the care of a patient. In other words, they must be careful and pay attention. If they fail to be careful or pay attention, it is called medical negligence or malpractice.
  2. They must use their best judgment in the care of a patient. This means they are required by law to make wise use of what they know or should know about medicine and the patient they are treating. Using less than best judgement is medical negligence of malpractice.
  3. They must meet the standards of practice—the rules—that apply to the care of each patient in their community. This is sometimes called the "standard of care". These standards, or rules, are defined by other doctors or healthcare providers. A failure to follow the rules is also medical negligence or malpractice. If a doctor or healthcare provider fails to meet at least one of these duties, they have broken the law and have committed medical negligence or malpractice. It's the same as when we drive our cars. We must be careful and pay attention. We must make wise decisions about what to do and not do. We must follow the rules of the road.

How long do I have to file a medical malpractice claim?

The General Rules (Called the Statutes of Limitation)

A person over 18 years of age has three years from the date of the negligent medical act which resulted in injury.

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.

If the negligent medical act causes the patient’s death; his or her estate has two years to initiate legal action.

There are some special exceptions to the general rules, which should be discussed with an attorney.

What is a "Living Will" or an Advance Directive?

You can use an Advance Directive ("Living Will") form to give instructions for the future if you want your health care providers to withhold or withdraw life-prolonging measures in certain situations. You should talk to your doctor about what these terms mean. The Living Will states what choices you would have made for yourself if you were able to communicate. Talk to your family members, friends, and others you trust about your choices. Also, it is a good idea to talk with professionals such as your doctors, clergy, and lawyers before you complete and sign this Living Will.

Advance Directives, or "Living Wills" can be registered with the Office of the Secretary of State of North Carolina.

How can I get my medical records?

You have a legal right to get a copy of your medical records from any healthcare provider who treats you. To get a copy of your medical records, you must make a written request for your records by completing a "HIPAA Authorization" form, and giving it to your healthcare provider. They will usually have such forms available for you to fill out and sign.

You can also authorize another person, such as an attorney to get your medical records by filling out a HIPAA authorization and indicating that your records should be provided to the person you designate.

There may be a cost for the copies of your records. NC law limits these costs as follows:

NC General Statute § 90-411 provides:

  • The maximum fee for each request shall be seventy‑five cents (75¢) per page for the first 25 pages, fifty cents (50¢) per page for pages 26 through 100, and twenty‑five cents (25¢) for each page in excess of 100 pages, provided that the health care provider may impose a minimum fee of up to ten dollars ($10.00), inclusive of copying costs.

What’s My Case Worth?

The law recognizes certain factors that can be considered in determining what a claim is worth. To some extent, the factors that can be considered depend upon the facts of the case.

Some of the more obvious and concrete factors are easy to establish. These include:

  • Past medical expenses for care that would not have been necessary if there had been no medical malpractice.
  • Future medical expenses related to continuing care that will probably be necessary in the future because of the harm caused by a doctor’s malpractice.
  • Past lost income or wages that would not have been lost if there had been no medical malpractice.
  • Future lost income related to continuing inability to work as a result of the harm caused by a doctor’s malpractice.

Some factors are not as easy to value but the court system relies on juries to use common sense and their knowledge of the ways of the world to place an appropriate value on them:

  • Past physical pain caused by a doctor’s failure to follow the rules or meet standards
  • Future physical pain caused by a doctor’s failure to follow the rules or meet standards
  • Past mental suffering caused by a doctor’s failure to follow the rules or meet standards
  • Future mental suffering caused by a doctor’s failure to follow the rules or meet standards
  • The loss of the use of a part of the body caused by a doctor’s failure to follow the rules or meet standards

Scarring caused by a doctor’s failure to follow the rules or meet standards

  • Emotional distress caused by a doctor’s failure to follow the rules or meet standards
  • Permanent injury caused by a doctor’s failure to follow the rules or meet standards
  • Losses due to the change in the nature of the relationship between a husband and a wife caused by a doctor’s failure to follow the rules or meet standards

If the patient dies as a result of a doctor’s failure to follow the rules or meet standards, the law of North Carolina provides that the patient’s heirs are entitled to recover for the following factors:

  • Loss of the value of the relationship the family had with the deceased patient
  • Medical expenses
  • Loss of income
  • Funeral expenses
  • For the patient’s pain and suffering prior to death

If a jury determines that a patient was in fact injured or died because of a doctor’s failure to follow the rules or meet standards, then the law provides that the patient is entitled to recover the sum of all the values assigned by the jury to the individual factors that the judge allows into evidence.

What is a General Durable Power of Attorney?

A general power of attorney is a legal document which authorizes another person to conduct your personal and business affairs in your place. It is a very powerful legal document that should only be given to someone in whom you have complete trust, since the person you designate in your power of attorney can do virtually anything in your name. Unless a general power of attorney is "durable" it will become ineffective if you later become legally incompetent (just when you need it most.)

A durable general power of attorney is one that remains effective even if you subsequently become legally incompetent. Since a power of attorney is most needed if you are unable to make your own legal and financial decisions, it makes sense to make sure that your general power of attorney is durable—which means, that it remains effective even if you later become legally incompetent.

A general power of attorney-even if it is durable-becomes ineffective upon death.

What is a Healthcare Power of Attorney? When do I need one?

A healthcare power of attorney is a document which authorizes another person to make healthcare decisions on your behalf when you are not able to do so. It can also authorize doctors and other health care providers to discuss your care with another person about your condition, even if you are still able to make treatment decisions on your own.

You must be legally competent when you sign a healthcare power of attorney. The power of attorney can be written in such a way that it will remain effective if you subsequently become legally incompetent for any reason. For this reason, you should sign a healthcare power of attorney before you enter the hospital or undergo any medical procedure which may potentially result in harm.

A healthcare power of attorney becomes ineffective upon your death.

Have I Waived My Rights Because I Signed A Consent Form?

This question is asked by numerous people. Health care providers are not given a license to commit malpractice simply because a consent form was filled out by a patient. Despite the fact that the execution of a characteristic consent form specifies acknowledgement of the stated risks and complications in conjunction with a given treatment or operation, it doesn’t relieve a health care provider from their responsibility of meeting the standard of care in association with such treatment or operations.

How common is medical malpractice?

According to an article published in the Journal of the American Medical Association (JAMA), over 225,000 people die each year due to medical malpractice. This has become the third leading cause of death in the United States, after deaths from heart disease and cancer.

  • 12,000 deaths/year from unnecessary surgery
  • 7,000 deaths/year from medication errors in hospitals
  • 20,000 deaths/year from other errors in hospitals
  • 80,000 deaths/year from infections in hospitals
  • 106,000 deaths/year from non-error, adverse effects of medication

Can the extent of an autopsy be limited?

The scope of an autopsy can be limited, depending upon the circumstances. For instance, you can elect not to have an autopsy of the head and brain performed, if there is no reason to suspect a problem in that area of the body.

By whom should an autopsy be done?

If you have a choice, the autopsy should be done by a medical examiner who is not affiliated with the institution where the death occurred. Ask if the case can be transferred to the Chief Medical Examiner for the State of North Carolina in Chapel Hill. This will necessarily take longer and may involve some additional expense, but the added objectivity during the autopsy will be worth it. If the local or state medical examiner will not perform the autopsy, explore the possibility of a private autopsy, which can be done at a cost.

Should we take pictures of a family member who is receiving medical treatment?

It may seem unnatural, but it makes sense to take pictures of a patient who is receiving medical care. Sometimes it is not possible, but it can usually be done—particularly if you have a cell phone that includes a camera. Most of the time, such pictures will end up being pointless, but there are times when a photographic record is the very best evidence of what actually happened.

Pictures may be particularly appropriate when you sense that “things are just not right” for one reason or another. If wounds do not seem to be healing well, or you think that they be infected, it is important to take good quality photographs, that show the appearance of the wound and the nature of any drainage that may be coming from the wound. If a fracture does not seem to be healing as well as you expect, take pictures of the affected area as well as you can. If a cast seems too tight, or starts to smell, or develops discoloration from the inside out, take pictures. If you are in hospital and you observe a lack of cleanliness in patient care areas, take pictures.

As long as you remain concerned about any given situation, continue to take pictures each day. Mark each picture with the date and time that it was taken.

Make contemporary notes about what doctors and nurses are telling you about the problem area, so that there will be a record of your efforts to bring matters to their attention.

CAUTION: Healthcare providers do not want you to take pictures in their facilities, but if you think the situation warrants pictures, take as many as you think are necessary. Look for opportunities to take the photographs when the healthcare providers are not paying attention.

GENERAL GUIDELINE: If you wonder if you should be taking pictures, do it! If you end up not needing them, the cost is minimal. If you need a picture to prove what was happening, but fail to do so, it could prove quite costly.

How can a loved one be an effective advocate for a patient?

The best way to monitor what’s going on is to ask questions.

Ask questions to make sure you understand the nature of the Illness.

Ask questions to make sure you understand the treatment plan.

Ask questions to make sure you know what drugs are being given and why.

Ask questions to make sure you can recognize when something is not going as expected.

Ask questions to determine who is ultimately responsible for the medical decisions affecting your loved ones care.

Ask for an explanation when things don’t seem right.

Ask to speak to a doctor to make sure you are up-to-date concerning needed care

Take notes! Most providers will not mind if you take notes, so you can keep up with details from day to day. You will hear too much information to remember, so it is always a good idea to keep notes of what has happened, and what you have been told. It is also a place to write down questions you want to ask a doctor or some other healthcare provider when they visit the room.

Why is it important for a hospitalized patient to have a loved one act as a patient advocate?

Because mistakes are so common. Hospital personnel are usually very busy and must care for multiple patients. They are under constant pressure to provide more care in less time to more people. Hospitals set unrealistic time standards for dealing with various phases of patient care and the staff is evaluated on how well they meet the time goals set by management. As a result, the hospital staff makes mistakes which sometimes cause harm.

The same is true for physicians. They are often in such a hurry to move on to the next patient that they fail to take the time necessary to fully and carefully evaluate each patient.

A loved one needs to monitor a patient's care to minimize the risk of negligence—especially when the hospitalized loved one is too sick to comprehend what is happening and/or unable to keep up with the details of his or her treatment.

Do doctors and hospital have insurance for medical malpractice?

Yes. Most hospitals require that a physician have malpractice insurance before it will allow the doctor to practice in the facility. Hospitals also have insurance to cover its employees for acts of negligence. It is, therefore, rare that a doctor or nurse or any other healthcare provider would have to pay for malpractice out of their own pockets.

The companies who insure healthcare providers hire attorneys to defend them when legal action is taken. These attorneys are paid by the hour (whether they win or lose) to minimize any payment that will ultimately be made by the insurance company.

Why do I need an attorney for a medical malpractice claim?

The most basic reason is to make sure that you are treated fairly. Healthcare providers rarely admit that they have been negligent and it takes an attorney experienced in medical malpractice matters to recognize when negligence has occurred and what damages occurred as a result of the negligence.

Even when a healthcare provider admits fault and assures you that they will be fair with you, they are really trying to minimize the amount that they will pay you in compensation for the harm you have experienced.

What is the difference between medical malpractice and a complication?

A complication is an unintended or unexpected or undesired outcome during the course of medical treatment or surgery. When used in the proper way, the use of the term "complication" implies that the unintended outcome did not occur because of medical negligence. Many times the term is used improperly to describe any undesired outcome—even those which are caused by medical malpractice. Sometimes "complication" is used to describe what was actually the result of negligence.

For most treatments or surgeries there are “recognized complications”—unintended outcomes that can happen even when a healthcare provider is not negligent. Examples include infections or bleeding after surgery, and adverse reactions to drugs. However, it is important to remember that even recognized complications can be caused by negligent care. In such a case, the healthcare provider would not be relieved of liability just because the patient’s harm was a recognized complication.

When "complication" is used to describe something that went wrong during what was anticipated to be a simple procedure or something that happened in an area of the body not being treated, it is often being misused in an effort to avoid responsibility for negligent care.