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When can I sue for Medical Malpractice?

In any personal injury case, the plaintiff must prove that the defendant was negligent, or failed to use reasonable care. In the context of medical malpractice, when a healthcare provider fails to use the duty of care they owe all patients, you may have a case.

Medical malpractice claims in North Carolina can encompass a variety of different actions for individuals injured by a medical professional’s negligence. Some common examples of medical malpractice include:

  • Prescription error
  • Error in administration of anesthesia
  • Mistake during childbirth that harms the mother or baby
  • Failure to diagnose (heart disease and cancer are the most common) or misdiagnosis

However, just because a person suffers an injury while under the care of a medical professional does not automatically mean that patient has a medical malpractice suit against the doctor. All medical malpractice claims must have the same basic components to succeed. These require a plaintiff to prove in court that:

  1. The medical professional defendant had a duty, or standard of care, to you, the plaintiff
  2. The defendant failed to meet that duty
  3. The mistake caused the plaintiff’s injury
  4. The injury/the medical professional’s negligence damaged the plaintiff

Below is an explanation of each of the elements you must prove to succeed in a medical malpractice claim in North Carolina, and what you can be compensated for if you do.

Duty/Standard of Care

Medical professionals owe their patients what is called a standard of care, and you deserve to be compensated for failures to meet that standard of care that injure you.

What the standard of care is in any specific medical malpractice context depends on a number of factors. These include:

  • The standards of practice used by similar members of the same healthcare profession, as discussed above,
  • The specific disorder or malady being treated
  • Specifics about the patient’s age and overall health

Because it involves the application of topics the average member of society would not know, North Carolina law requires that expert testimony be used to identify the applicable standard of care in medical malpractice cases.

Failure to Meet That Standard of Care

This part of the claim is where you detail what the medical professional did wrong. After having established what standard of care applies, you have to prove to the court that the defendant-doctor’s actions fell short of that standard. Doctors, after all, are allowed to make errors. They are allowed to be wrong. They are not, however, allowed to be negligent.


Besides standard of care and failure to meet that standard, to succeed in a medical malpractice claim in North Carolina you must show that the doctor’s breach directly caused or contributed to your injuries.

Showing that the doctor’s breach of duty directly caused your injuries means you must prove to the court that if it were not for the doctor’s actions, you would not have been injured. Note that the breach does not have to be “the” cause, but it must be “a” cause.

Causation can be a difficult factor to prove in a medical malpractice case. Expert witnesses can be key to proving this element. However, unlike expert testimony as to the standard of care, expert testimony regarding causation does not have to come from a doctor who is in the same field or specialty as the defendant.


“Damages” as injury

The fourth and final prong you must prove to succeed in a medical malpractice claim is that you were injured by the doctor’s actions. The injury that you sustained is referred to as “damages.” Note that these damages do not typically include injury that is partially caused by the plaintiff’s own negligence (for example, if you fail to closely follow your aftercare instructions post-surgery).

“Damages” as remedy

This word also refers to the money a court awards you to compensate you for your injury.

There are three types of monetary damages that apply to medical malpractice cases. North Carolina law limits, or caps, some of these.

  1. Non-economic damages: This type of damages compensates a person’s pain and suffering and is meant to cover things like a plaintiff’s discomfort, pain, anxiety, stress, loss of enjoyment of life, scarring, and other negative intangible effects the injury and continual recovery has on the person’s life.
    1. North Carolina law puts a $500,000 cap on non-economic damages a person can receive in a medical malpractice action.
    2. This amount is adjusted upward every so often to account for inflation.
    3. This damages cap applies in two ways:
      1. The total amount of non-economic damages against all defendants cannot exceed $500,000, and
      2. The total amount given to all plaintiffs cannot exceed $500,000.
    4. However, this damages cap will NOT apply to noneconomic damages in a medical malpractice case if the jury finds BOTH of the following:
      1. The plaintiff suffered the loss of use of part of his or her body, permanent injury, disfigurement or death.
      2. The defendant’s actions (or their failures to act) were grossly negligent, reckless, fraudulent, committed with malice, or intentional.
        1. This is a narrow exception and can be difficult to prove.
  2. Economic damages: This type of damages covers costs like past, present and future medical bills and lost wages. North Carolina law does not limit recovery in economic damages.
  3. Punitive damages: These are intended to punish the medical professional for actions that are grossly negligent, reckless, fraudulent, committed with malice or intentional.
    1. North Carolina law caps the amount of punitive damages a court can award in medical malpractice cases at three times the amount of compensatory (economic and non-economic) damages or $250,000, whichever may be greater.

In general, a person in North Carolina has up to three (3) years from the date of the medical treatment that caused injury, or one year from when the injury was or should have been discovered, to file suit against a medical professional for malpractice.

Proving all of the elements above can be tricky, especially when you are trying to do so while surviving the potentially devastating injuries of medical malpractice. If you or someone you love has been injured by the malpractice of a medical professional, please contact Arnold & Smith, PLLC to schedule a free consultation. One of our experienced and dedicated personal injury attorneys are prepared to fight on your behalf.

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