Medical Malpractice & Professional Liability
Lincoln Derr’s attorneys and support teams have over 75 years of combined expertise in the health care field. We represent some of the largest hospitals and physician insurance carriers in North Carolina.
We approach each case from both a risk management standpoint and from the eyes of the health care provider by carefully analyzing liability and damages from a solution-centered viewpoint.
Over the years, we have developed strong expert contacts in all fields of medicine, allowing us to give our clients a second opinion before costs become insurmountable.
Lincoln Derr’s skilled attorneys advocate for their clients during the pre-trial phase of a matter. As trial attorneys they remain prepared to take a case all the way through trial if it is in the best interest of their clients.
Representative damage exposure ranges from million dollar actions to multi-million dollar actions. Our attorneys have represented physicians of all specialties, advanced care providers, nurses, psychologists, and other health care providers.
Our representative cases include, among others:
Claims of Negligent Supervision by Hospitals
Delayed Diagnosis of Cancer
Alleged Lack of Informed Consent
Violations of HIPAA
MEDICAL MALPRACTICE DEFENSE IN NORTH CAROLINA
Lincoln Derr attorneys routinely consult with clients on risk management issues and pre-litigation matters. Complications and near misses happen in all areas of medicine, many times despite reasonable and appropriate care. Utilizing practical tips from our combined experiences and the cases we have defended, in addition to understanding the ramifications to a health care provider in either resolving or denying a claim, we offer unique problem-solving options to realize the goals of our clients.
Many regulatory risks may arise in the career of a healthcare professional, and Lincoln Derr attorneys are available to assist. Our regulatory representation includes, among other areas, defense of claims involving improper billing practices, employee retaliation or valid termination practices, EMTALA/Stark violations, HIPAA violations, off-label use of equipment or medication, media content liability, oversight of affiliate clinicians, telemedicine issues, social media presence, digital apps malfunctioning, communications with patients, and medical board investigations. We have a proven track record in matters brought before the North Carolina Medical Board, including claims of provider substance abuse or overprescribing. We have successfully represented physicians and other health care providers in investigations, at compliance conferences, and at administrative hearings and appeals.
In North Carolina, a medical malpractice lawsuit arises when a plaintiff files a Complaint alleging he or she was injured due to a health care provider failing to comply with the applicable standards of practice, failing to use his or her best judgment, or failing to use reasonable care and diligence in the treatment of that patient. Before a plaintiff can file the Complaint, he or she must prove that the case has been certified by someone who is in the same or similar field of practice as the defendant health care provider and who is willing to testify that the care fell below the applicable standard of care.
STANDARD OF CARE
The standard of care is a reasonable approach, practice, or procedure for a particular medical situation that is accepted by the medical community in a particular geographic location. This can vary depending on where the medical service was provided or the medical condition at issue, and the standard of care may encompass numerous approaches or practices applicable to a particular condition or situation. A breach of the standard of care means a failure to provide medical treatment consistent with an accepted standard. If this failure causes actual injury, the injured individual, or his or her estate in instances of a wrongful death lawsuit, is entitled to damages under the law. A health care provider may also be liable if he or she fails to use his or her best judgment in the treatment or care of the patient or fails to use reasonable care and diligence in the application of his or her knowledge and skill in the treatment of the patient.
If a plaintiff can establish a breach of a duty owed by the health care provider, he or she then must prove that the health care provider’s breach or failure proximately caused an injury. A breach with no injury is not compensable. In addition to proving that the health care provider was negligent, plaintiffs must also prove that the negligence actually caused some compensable injury. Of course, rarely would someone try to file a lawsuit if he or she has not suffered an injury. For example, an unintentionally retained surgical instrument will typically be considered the result of a negligent act. However, if the object is removed later that day or the next day without any additional injury to the patient, the negligent act would not be compensable. Similarly, damages for emotional distress are only compensable if the plaintiff actually suffered severe emotional distress. So, hurt feelings, annoyance, or mere inconvenience are not compensable injuries.
Damages may include both compensatory and punitive damages. Compensatory damages are those directly resulting from the injuries sustained, such as lost wages, medical bills, and “non-economic” damages such as pain and suffering. In 2011, the North Carolina General Assembly capped the recoverable amount of non-economic damages at $500,000 (adjusted for inflation every three years, it currently stands at $533,409). The cap may not apply, however, where the health care provider’s alleged actions constitute indifference to the rights and safety of others. Punitive damages seek to punish wrongful conduct and may only be sought when the health care provider’s conduct can be described as willful or wanton. In medical malpractice actions, punitive damages are rarely awarded, as the vast majority of health care providers diligently work to help their patients.