June 3, 2019

In its opinion filed on May 21, 2019, the Court of Appeals of North Carolina (“North Carolina Appellate Court”) held: “There is a split of authority around the country as to whether a patient may recover for the injury of the mere “loss of chance” of a better medical outcome proximately caused by a physician’s negligence: Some states allow a plaintiff to recover for a “loss of chance” injury while others exclusively follow a traditional approach … We conclude that North Carolina has not departed from this traditional approach … “Loss of chance” is not a recognized claim in North Carolina in medical malpractice negligence cases.”

Loss Of Chance At A Better Outcome

Under the “traditional” approach, a plaintiff may not recover for the loss of a less than 50% chance of a healthier outcome. But, if the chance of recovery was over 50%, a plaintiff may recover for the full value of the healthier outcome itself that was lost by merely showing, more likely than not (greater than 50%), that a healthier outcome would have been achieved, but for the physician’s negligence.

The Plaintiff’s Medical Malpractice Claim

The North Carolina medical malpractice plaintiff alleged that she exhibited signs of a stroke just after midnight on August 24, 2014. Her family transported her to the emergency room of a nearby hospital, arriving shortly before 2:00 a.m. The proper protocol where a patient presents herself for treatment within three hours of suffering a stroke is to administer Alteplase, a tissue plasminogen activator (“tPA”). When tPA is administered within three hours of the onset of a stroke, a patient who would otherwise suffer lasting neurological effects has a 40% chance of an improved neurological outcome.

When the plaintiff arrived at the hospital, she was seen immediately by the on-duty emergency physician (defendant physician). The defendant physician failed to properly diagnose that the plaintiff had suffered a stroke and therefore did not administer tPA within the three-hour window. The plaintiff continues to suffer adverse neurological effects, such as diminished mobility, from her stroke.

The plaintiff’s North Carolina medical malpractice lawsuit alleged that had the defendant physician properly diagnosed her stroke, the standard of care would have dictated that he administer tPA. If tPA had been administered, she would have had a 40% chance of a better neurological outcome than the outcome that she, in fact, is experiencing.

Because tPA was not available at the local hospital where the plaintiff was seen, she would have needed to be transported to the nearest hospital where tPA could be administered. Thus, prompt diagnosis of the stroke was crucial to arrange tPA therapy within the three-hour period.

The North Carolina Appellate Court stated: “our Supreme Court has sustained a nonsuit in a medical malpractice case where the plaintiff’s expert merely testified that the plaintiff would have had a better chance of recovery had he received immediate medical attention, stating “[t]he rights of the parties cannot be determined upon chance.” The North Carolina Appellate Court held: “our Court has expressly refused to adopt “loss of chance” as a separate cause of action in a negligence claim case. Specifically, we refused to recognize a claim for the mere increase in risk of a serious disease, stating that any change in our negligence law lies “within the purview of the legislature and not the courts[,].”

Parkes v. Hermann, No. COA18-888.

If you or a loved one may have been injured as a result of medical negligence in North Carolina or in another U.S. state, you should promptly find a North Carolina medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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