North Carolina Medical Malpractice Legal Questions

I do not practice in this particular sub-speciality of medical malpractice law but I'm pretty sure the answer to your question is "yes".  One of my professors in law school was actually a retired army colonel who defended military doctors in federal court against medical malpractice claims.  Unless the law has changed, I think these cases are heard before a federal judge without a jury.  But I could be wrong about that.  My instinct tells me that you should be able to contact an attorney in Fayetteville who would be able to provide you with some more definitive direction and advice since its right next to Fort Bragg and more likely to have attorneys in that city who handle these types of matters. Best, Luke Lucas T. Baker, Esq. Concord, NC... Read More

I'm so sorry to hear about your situation.  First and foremost, I hope that you make a full recovery.  The answer to your question, is this:  maybe.  I realize this may not be the answer you wanted to hear and you may have even preferred to hear a definitive "no".  But no attorney is qualified to tell you whether you have a valid medical malpractice case.  Only a properly qualified medical expert can answer that question.  Allow me to explain. In North Carolina before a medical malpractice case can be filed, the medical care must be reviewed by a qualified expert who is willing to testify that the medical care you received was sub-standard.  The way this is usually expressed is that the medical care provided fell below the applicable standard of care.  This expert review and certification has to take place first in order to answer your question. This is why I answered your question the way I did. Medical malpractice cases are specialized forms of negligence cases.  So they consist of the same evidentiary requirements.  The expert review referenced above is the mechanism by which "fault" is shown.  The remaining elements that must be proven are (1) damages (2) proximately caused by the fault.  In your case, some other key questions or issues that need exploration are whether the hospital staff on 8/24/2010 should have diagnosed a condition that would have prevented the strokes.  Same for the second hospital.  When you go to the emergency room, lots of times those physicians and nurses are there to "stop the bleeding" until you can get to your family doctor or to a specialist.  It's a patch shop, not intended to provide a thorough diagnostic workup.  Because of this, cases against such ER providers present challenges in proving fault even if there is a missed diagnosis.  At any rate, if proper diagnosis wouldn't have prevented the strokes, then there would be no actionable negligence because there would be no causal connection between the harm and the fault. Your case sounds like it warrants additional investigation by an attorney, or at least a consultation.  If you have permanent damage or injury that has resulted from a missed diagnosis you may be entitled to receive compensation for those injuries.  I would encourage you to contact an attorney in your community with experience in handling medical malpractice matters for further advice and inquiry into the matter. This response to your post is for informational purposes only and not for purposes of giving legal advice.  This response does not create an attorney client relationship. Best, Luke Lucas T. Baker, Esq. The Baker Law Firm, P.A. Concord, NC  ... Read More

I see that you may have posted a few related questions.  I'm going to try and address all of them in this one response. First, the HIPAA laws are a set of federal statutes and regulations which require medical providers to keep your private medical information in confidence and only release it to others with your consent or a court order.  Your consent is typically communicated in the form of a HIPAA release document which specifically authorizes your medical provider to release your records to another person or entity.  Second, if your medical provider provided your private medical information to your employer without your authorization, there may be a violation.  Some exceptions would include medical screenings required by the employer as a condition to employment.  Third, if your medical provider provided FALSE information to your employer which resulted in your employer firing you, that opens a host of other questions.  Depending on further investigation, the medical provider may be subject to liability for defamation, tortious interference with contractual relations and prospective economic advantage, unfair and deceptive trade practices, etc. As far as your employer is concerned, the general rule in North Carolina is that a private employer can fire an employee at any time for any reason, subject to applicable state and federal law prohibiting discrimination or retaliation against employees in certain circumstances.  So unless there are some other relevant facts, there's probably no legal action you could take against your employer under these circumstances. If you believe you've been wronged by the action of a medical provider then you should consult with an attorney in your community experienced in these matters.  This response is intended to be for informational purposes and not for purposes of legal advice.  This response does not create an attorney client relationship. I do hope that this matter resolves for you in a satisfactory manner and I'm very sorry to hear of your situation. Best, Luke Lucas T. Baker, Esq. The Baker Law Firm, P.A. Concord, NC    ... Read More

In North Carolina a medical malpractice case consists of certain critical elements that must be proven.  First, expert testimony must be offered to show that the medical care provided constituted a breach of the applicable standard of care in the same or similar community among providers of the same type or specialty.  This is a fancy way of saying "Fault".  Second, there has to be some type of injury or harm resulting from the fault.  Finally, the injury or harm must be "proximately caused" by the fault.  When we say "proximate cause", we are referring not just to a relationship in time (i.e. before the fault I wasn't hurt and after the fault I was, therefore the fault caused my injury).  Rather, proximate cause means that the particular injury has to have been the type of injury that a person of ordinary physical condition would have suffered under the same or similar circumstances.  Often this is referred to as "foreseeability".  That is, can we reasonably expect this type of injury to result from this particular type of fault. That's a lot of genera info.  In your particular case, it might not be a medical malpractice case at all.  This would hinge on whether the case worker is a "medical provider" within the meaning of Chapter 90 of the North Carolina General Statutes.  So, the situation might be an ordinary negligence case.  At any rate, it sounds like there may have been a goof on the part of the caseworker or maybe a miscommunication or misunderstanding between the assisted living facility and the caseworker.  That doesn't necessarily equate to fault.  Also, its not clear to me as to whether there was any type of harm caused to your brother as a result of the miscommunication. Accordingly, based on this limited information, even assuming there is fault, it doesn't sound like your brother was harmed by it.  If that's true, then there would be no case to pursue. As a lawyer, I must but a disclaimer on this.  What I'm providing here is just a bit of info on NC law and applying it to the limited hypothetical facts above.  This communication does not create an attorney client relationship.  If you feel that your brother has been harmed, you should seek a consultation with a North Carolina attorney in your community who is experienced in handling these kinds of cases.  Finally, I hope your brother makes a swift recovery from whatever medical condition he has.  It sounds like he's got a great brother or sister looking out for him.  Best, Luke Lucas T. Baker, Esq. The Baker Law Firm, P.A. Concord, NC... Read More