Victims of Military Med-Mal May Get Their Day in Court; More

Wayne J. Guglielmo, MA

Disclosures

February 25, 2019

In This Article

Patient Fell Off the OR Table, but Lawsuit Has Setback

A North Carolina appeals court has upheld the partial dismissal of a suit brought by a woman who fell off an operating table during heart surgery, as a story in the Fayetteville Observer reports.[4]

In 2012, Marjorie C. Locklear, then 75, was undergoing heart catheterization surgery at Southeastern Regional Medical Center (now Southeastern Health), in Lumberton. According to her claim, during the procedure, when her body "was opened up and [she] had surgical tools in her," she fell off the operating table, hitting her head and sustaining a concussion, bruises, an injured jaw, and double vision.

Locklear alleges that her fall and injuries were the direct result of negligence on the part of her surgeon, whom, she claims, not only didn't sufficiently "monitor and control her body" during the procedure but was at times distracted.

In 2015, Locklear sued her surgeon, Southeastern Regional, Duke University Health System (now Duke Health), and Duke University Affiliated Physicians (now Duke Primary Care). At the time, Duke was partnered with Southeastern Regional to provide cardiology services.

The defendants presented several reasons why the suit should be dismissed, including the argument that, in serving Southeastern Regional with the lawsuit, Locklear's attorneys had hired a private process server rather than enlisting the local sheriff, as required by state law. The trial judge found that argument persuasive and dismissed the suit against Southeastern Regional.

In its review of that decision, the North Carolina Court of Appeals, by a 2-1 majority, affirmed the lower-court decision, but left Locklear's suit against the surgeon, Duke Health, and Duke Primary Care in place.

That suit may not head directly to trial, however.

Initially, Locklear's attorneys framed their client's case as a matter of general negligence rather than medical malpractice. Their goal, presumably, was to circumvent North Carolina's $500,000 medical malpractice damages cap, which doesn't apply to general negligence claims. Despite this, in August 2018, the North Carolina Supreme Court decided that the case should be handled as a medical malpractice suit and not as a general negligence suit. It sent the case back to the Court of Appeals.

But here's where things get tricky: In December 2018, in his partial dissent to the 2-1 appeals court ruling, Judge Phil Berger, Jr, was uncertain whether Locklear's attorneys had sufficiently complied with another state requirement, namely that plaintiffs take steps to have their medical records reviewed by experts before filing a suit.

It's far from certain whether the defendants will seize on this point and ask the state's high court to once again weigh in. If it does, however, a resolution to Locklear's suit could end up being delayed yet again.

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