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Updated by HCWB on Sep 12, 2018
Headline for 5 Common Defenses to Medical Malpractice in North Carolina
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5 Common Defenses to Medical Malpractice in North Carolina

In North Carolina, there are a number of defenses that a healthcare professional can use to avoid medical malpractice liability. These defenses are quite varied — and depending on the circumstances, those who have been sued for malpractice may be able to persuasively assert multiple defenses. Consider the following.


Contributory Negligence Bars Plaintiff Recovery

North Carolina remains one of few remaining states that continues to impose contributory negligence in civil lawsuits, to the benefit of defendants — medical malpractice defendants included, of course. Under the contributory negligence scheme, if the injured plaintiff has even partially contributed to their injuries (i.e., one percent at fault), then the defendant may avoid liability entirely.

In the medical malpractice context, plaintiff fault is rather common. For example, if a patient fails to mitigate their losses by missing rehabilitation sessions (thus exacerbating their negative physical condition), the defendant may be able to show that the plaintiff is partially at fault and therefore that they are barred from recovery.


Plaintiff Affirmatively Consented to Risks

Assumption of risk in the medical malpractice context is somewhat uncommon (in practical terms), though it tends to be more relevant in situations involving inherently risky procedures or treatments. For example, if you offer a patient two different treatments — one experimental option and one standard option — and you adequately inform the patient as to the inherent risks involved with each option, then the patient cannot bring an action against you for medical malpractice unless there were additional treatment options that were not made available to them, or you made a serious medical error while administering the treatment at issue.

Making an assumption of risk can be quite complicated — as are many of the other defenses in a medical malpractice lawsuit — so you’ll want to consult with an experienced North Carolina medical malpractice attorney for further guidance on how to proceed with your defense.


The Substantial Minority Defense

The standard of care in medical malpractice lawsuits does not require that the defendant healthcare professional act in comport with the “average.” The defendant is entitled to administer treatment that is not “mainstream,” so long as the defendant can show that a substantial minority of respected healthcare professionals (similarly qualified) agree with the procedures/treatment administered by the defendant. This is known as the substantial minority defense.


No Causal Connection Between Medical Negligence and Injury

As with any personal injury claim, medical malpractice claims cannot succeed unless the plaintiff is capable of proving that your negligence substantially and proximately caused their injuries. For example, even if you did commit medical negligence — perhaps you made an unfortunate medical error — you cannot be held liable for medical malpractice if the plaintiff’s injuries are unrelated to the negligence at issue. Perhaps the plaintiff did not actually suffer any serious injuries due to your medical error. Perhaps the plaintiff’s injuries or condition would have developed regardless of your negligent act. This is often the case in misdiagnosis cases, where the illness is sufficiently advanced that it could not have been treated adequately even if the healthcare professional had properly diagnosed it.


Applicable Standard of Care Was Not Violated

If you can show that your actions were consistent with the applicable standard of care — in other words, how a reasonable, similarly-qualified healthcare professional in the same (or similar) circumstances would have acted — then you can avoid liability for medical malpractice altogether. You can only be held to standards that are sensible for the circumstances, both situational and personal. For example, it would not be fair to hold a family doctor to the same standard of care as a radiologist when it comes to making a cancer diagnosis.

  • Harris, Creech, Ward and Blackerby, P.A. is a North Carolina litigation and personal injury law firm. HCWB is nationally recognized and represents clients throughout the state of North Carolina.

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