Asheville Medical Malpractice Lawyers
Protecting Victims of Negligence
Most of us aren’t medical experts, so we trust our doctors, nurses, and hospitals to make a good diagnosis and carry out our care in a responsible manner. Most of the time, that’s exactly what happens. But there are still far too many instances where it doesn’t, and the consequences can be seriously damaging — even fatal — for the patient. A medical malpractice attorney is there to hold the healthcare industry accountable and obtain some measure of justice for those who have suffered.
The 4 Elements of Negligence in Medical Malpractice
Winning a medical malpractice lawsuit requires proving that whoever is the target of the lawsuit was negligent. There are four things that must be proven in court to establish negligence.
Duty of Care
All four of these principles apply in all personal injury cases, not just medical malpractice. The first principle, the duty of care, will likely be self-evident in a medical lawsuit. If there’s a doctor-patient relationship in place, then the doctor and the staff owe a duty of care.
Breach of Duty
The plaintiff must prove that their injuries happened because the medical professional breached their duty. It’s not enough to simply establish that an adverse event occurred or even that it can be directly tied to the medical procedure. It must also be shown that all the above happened because the defendant failed to act within the boundaries of what would be considered reasonable care.
After the breach of duty is established, the court will want to see causation — that is, that the adverse event can be specifically tied to the breach of duty. In some cases, causation will be obvious, but not as often as you might think. The defendant will have access to medical records. They may seek to argue that your adverse event was caused by a pre-existing condition. A part of the pre-trial process will be a deposition where a plaintiff may be asked about their post-medical procedure activities. An attempt may be made to tie an adverse event to those activities rather than the breach of duty.
The plaintiff must show what specific damages they have suffered as the result of a healthcare professional’s negligence. The natural place to start is medical bills that resulted from negligence. Any time missed from work can be documented to show lost income. These are the economic damages that can be collected.
Non-economic damages can be more challenging. They involve finding some level of compensation for the plaintiff’s pain, suffering, and general loss of quality of life. North Carolina law currently limits non-economic damages in a medical malpractice case to $500,000.
A final challenge on the question of damages is the fact North Carolina uses strict contributory negligence. This means a court assesses the overall responsibility that lies with both plaintiff and defendant. Perhaps the court believes that there was negligence, but that the defendant did contribute somewhat to the adverse event by their post-procedure activities, or that a pre-existing condition was at least in some way responsible.
This is not unusual. What makes the state of North Carolina unusual is that we are one of just five states where if the plaintiff has any responsibility at all, they collect nothing. The more common approach is to allow a plaintiff to collect in proportion to their share of responsibility. All of this heightens the burden of proof that will be on the plaintiff’s legal team. It underscores the importance of having a deeply experienced medical malpractice attorney in your corner when battling against the healthcare industry.
Medical Malpractice Statute of Limitations
If you suffered from medical malpractice, you may find yourself wondering how long you have to sue for medical malpractice. The statute of limitations in general can be a complex law, that contains many exceptions or extensions depending on the specifics of an individual’s case. The statute of limitations for medical malpractice cases is typically even more complex. According to North Carolina General Statutes section 1-15 medical malpractice injury victims typically have at least 3 years from the date of their injury to file a claim.
Some circumstance that the law acknowledges can change this time period includes if the injury was caused by a foreign object left in the injury victim’s body. Another law that is typically associated with medical malpractice is sometimes referred to as the “discovery rule.” In short this law accounts for the fact that some injury victims do not realize they have been injured right away. When undergoing a medical procedure, particularly one that includes surgery, pain and discomfort are expected.
For some, it takes time to realize that their suffering is not par for the course for their procedure. If you believe you have suffered an injury at the hands of a negligent medical professional, it’s important to speak to an attorney about the details of your case as soon as possible.
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We have been fighting for victims of medical malpractice for over 30 years. At Hensley Cloninger & Greer, P.C, our Asheville medical malpractice lawyers don’t shy away from the high standards. We meet them and we secure justice for people who need and deserve it.