Reflections on Medical Malpractice cases in North Carolina

A friend of mine recently asked me why medical malpractice cases are so challenging to litigate in North Carolina.  My response was that medical malpractice cases are some of my favorite and most rewarding cases to handle because of the close connections I’ve formed with my clients.  These clients, through no fault of their own, were all seriously injured because of a preventable medical mishap.  Like most relationships forged in trying circumstances, these bonds are meaningful, deep, and permanent.

Medical malpractice cases are difficult for many reasons.  Because they require expert witness testimony, they tend to be expensive.  It is often necessary to hire a number of medical doctors to review the case and testify, and these doctors typically charge for their time by the hour.  These cases are typically defended very aggressively by attorneys hired by medical malpractice insurance companies.  Therefore, there are usually many trips required to take and defend numerous depositions, each incurring the costs of travel, lodging, transportation, meals, etc., in addition to the costs of a court reporter and a written transcript.  Medical malpractice cases are also much more likely to be tried than ordinary negligence cases.  This means that additional costs are incurred to create exhibits, for witness travel and testimony, and for lodging, meals, and other incidental costs.  Plaintiffs in medical malpractice cases also face a number of legislative, procedural, and other rhetorical difficulties, including arbitrary legislative caps on damages, widespread (but unfounded) fears among potential jurors of frivolous lawsuits, and usually a lack of cooperation from subsequent treating physicians.

Because medical malpractice cases are so challenging in our State, it is vital that victims consult with an attorney with substantial experience in this specialized area of the law.  When considering counsel, inquire about the percentage of medical malpractice cases handled by the lawyer or firm, question whether and how often the lawyer or firm has tried medical malpractice trials, and ask about the challenges and potential costs of pursuing your case.  Finally, but just as importantly, seek an attorney with whom you will likely form a meaningful personal, in addition, to a professional bond.

 John Chilson is a partner at Comerford & Britt, LLP, in Winston-Salem where he focuses his practice on catastrophic personal injury and medical malpractice claims.  He, and all of the other experienced medical malpractice litigators at Comerford & Britt, LLP, will be glad to answer your questions and identify all available legal options.  Please visit www.comerfordbritt.com or call 877-631-8510.

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Help for the Heroes

November 11th is Veteran’s Day.  It is a Day to honor our Nation’s bravest men and woman. Veterans Day, originally known as Armistice Day, was created to mark the anniversary of the end of World War I. In 1918, on the 11th hour of the 11th day of the 11th month, the guns fell silent over Europe.  In 1954 the United States decided to stop calling it Armistice Day and renamed it Veterans Day.  The selfless acts of Veterans bring an unspoken peace to our nation that some will never fully appreciate. Those selfless acts leave many Veterans with scars for life. Our Veterans’ sacrifices are met with little to no reward once they are discharged.  Many of those that have been deployed overseas have witnessed the unimaginable so what do they do when they return? Surely there are some residual effects of being at War even if you cannot physically see them. What kind of assistance is available to our Veterans when they return home to help them cope with what they have gone through? Sad to say, but there isn’t much.

At the conclusion of WWI, Congress had established a new system of benefits for Veterans that had been in place for only a year which included disability compensation, insurance, and vocational rehabilitation for the disabled. It was not until 1944 and World War II that the GI Bill was created. Currently, Veterans have the right to disability benefits, reemployment rights, proper medical care, housing, etc., when they return to the civilian world.  (http://www.vfw.org/assistance).  However, in most instances, information about and access to these benefits are not readily available.  Fortunately, there are attorneys willing to help and in some cases pro bono. Luckily, in this day and age, we are also privy to a plethora of information on the internet — with a little research Veterans can obtain the proper help they need in order to ensure they are getting all the benefits they are entitled to. (https://www.vetcompandpen.com/)

If you’re out on Veterans Day and happen to see a Service member, take the time to thank him or her for his/her service.  That’s the least we can do for the high price they pay to protect our freedom.

 Blog post author Kari Davenport works as a litigation paralegal at The Law Offices of James Scott Farrin. Headquartered in Durham, the firm has offices throughout the state and focuses on Workers’ Compensation, Personal Injury, Commercial Truck Accidents, Social Security Disability, Product Liability and Mass Torts, Intellectual Property, Civil Rights and Eminent Domain law.   

New Resource for Miller Cases

Earlier this year, the Supreme Court of the United States issued its opinion in Montgomery v. Louisiana, 193 L. Ed. 2d 599, 622 (2016), which made the holding of Miller v. Alabama, 183 L. Ed. 2d 407, 424 (2012), retroactive. Miller, of course, held that mandatory life without parole sentences for juvenile defendants violate the Eighth Amendment ban on cruel and unusual punishment. However, Miller also laid the groundwork for the Court’s determination in Montgomery that a discretionary life without parole sentence also violates the Eighth Amendment “for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Montgomery, 193 L. Ed. 2d at 619 (quoting Miller, 567 U.S. at ___, 183 L. Ed. 2d at 424).

The decisions in Miller and Montgomery have already affected North Carolina and will continue to influence juvenile delinquency and criminal cases in this state for years to come. Soon after the decision in Miller was issued, the North Carolina General Assembly enacted a statutory scheme for sentencing juvenile defendants convicted of first-degree murder. Under the new statutory scheme, trial judges retain the ability to impose discretionary life without parole sentences for those defendants. North Carolina is also one of only two states in which 16- and 17-year-olds charged with crimes are prosecuted in adult criminal court. Under a separate law, cases in which a juvenile court judge finds probable cause to believe that a 13-, 14-, and 15-year-old committed first-degree murder are also automatically transferred to adult criminal court. In light of the Supreme Court’s ruling that Miller is retroactive, as well as unique aspects of North Carolina law that funnel juveniles to superior court, there will be many cases across the state that will result in sentencing hearings to determine whether defendants who were juveniles at the time of a murder should receive sentences of life in prison with or without parole.

To help attorneys prepare for these hearings, a working group of attorneys from the Office of the Juvenile Defender, the Office of the Capital Defender, the Office of the Appellate Defender, and North Carolina Prisoner Legal Services has developed a handout entitled, “Strategies for Litigating Miller Cases.” The handout provides advice for obtaining mitigating evidence, a description of the research that influenced Miller and Montgomery, a discussion of constitutional arguments against life without parole sentences, and much more. The handout also provides hyperlinks to sample motions and other resources that will aid attorneys as they defend their clients in these cases.

If you are retained or appointed to handle a retroactive sentencing hearing or a case involving a new first-degree murder charge against a juvenile client, please be sure to review the handout, which is available on the Appellate Defender website. In addition, if you are interested in joining a listserv about Miller issues, please send an email to David Andrews, Assistant Appellate Defender, at David.W.Andrews@nccourts.org. The listserv will enable attorneys in the working group to post new appellate court decisions on Miller issues and provide a forum for questions on Miller cases. Finally, please stay tuned for announcements on training events for Miller cases. Over the next several months, the working group will develop presentations on Miller issues and will work to share those presentations to attorneys across the state.

David Andrews is an Assistant Appellate Defender in the North Carolina Office of the Appellate Defender (OAD), a division of the Office of Indigent Defense Services.  OAD staff attorneys represent indigent clients in criminal, juvenile delinquency, and involuntary commitment appeals to the Court of Appeals of North Carolina and the Supreme Court of North Carolina.