Healthcare Liability

Absolutely. In fact, it’s highly recommended any time you have an unexpected adverse outcome. 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 healthcare provider in either resolving or denying a claim, we offer unique problem-solving options to realize the goals of our clients.

Yes. 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 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 healthcare 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 healthcare 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.

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 healthcare 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.

Yes. If a plaintiff can establish a breach of a duty owed by the healthcare provider, he or she then must prove that the healthcare provider’s breach or failure proximately caused an injury. A breach with no injury is not compensable. In addition to proving that the healthcare provider was negligent, plaintiffs must also prove that the negligence actually caused some compensable injury.

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 healthcare 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 healthcare provider’s conduct can be described as willful or wanton. In medical malpractice actions, punitive damages are rarely awarded, as the vast majority of healthcare providers diligently work to help their patients.