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doctor graphic

Medical malpractice cases are similar to ordinary negligence cases in that, in order to prevail, the plaintiff must establish that the defendant owed a duty to the plaintiff, that the defendant breached his or her duty, that the plaintiff was harmed, and that there was a link of proximate causation between the breach of duty and the damages suffered by the plaintiff. In medical negligence cases, however, the plaintiff must establish these elements through an expert witness who is qualified to testify as to the standard of care in a particular case.

Under North Carolina Rule of Civil Procedure 9(j), the plaintiff in a medical malpractice case must have his or her medical records reviewed by a potential expert witness prior to the filing of his or her complaint (except in cases asserting res ipsa loquitur). If the plaintiff fails to comply with this rule, his or her case is to be dismissed by the trial court.

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gunLawsuits against the government or public officials can be much more challenging than similar claims against individuals or private businesses. This is because the doctrine of sovereign immunity protects the government from liability except in cases in which liability is expressly waived.

This is based on a holdover from the old English common law, under which “the king could do no wrong.”

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desk calendarAs much as we would like to believe that eugenics – an attempt to control the so-called “genetic quality” of a human population, based on factors such as social class and mental health – is something in which only other nations have engaged, this is simply not true. In fact, thousands of individuals right here in North Carolina were forcibly sterilized over several decades in the last century based on “public policy” as determined by local officials.

The State has since enacted a compensation program for those who were affected by the program. There is one “catch,” however – the claimant must have been alive as of June 30, 2013. The state supreme court was recently asked to consider the constitutionality of this rule – or, actually, to consider whether an intermediate appellate court had jurisdiction to answer the constitutionality question in an appeal by the administratrix of a woman who died prior to the “magic date” set forth by the statute establishing the program.

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car accidentWhile the general public has come to expect most dealings with an insurance company to have at least some element of delay and frustration, most people are very unpleasantly surprised to discover that situations in which underinsured or uninsured motorist insurance is involved are often particularly contentious.

Unlike homeowner’s insurance or even property damage to one’s own automobile, the value of an uninsured or underinsured motorist claim can be rather subjective and, hence, may involve a great deal more negotiation that the insured individual expected.

In fact, it is not unusual for uninsured or underinsured motorist coverage disputes to be subject to litigation in the court system, with the insurance company effectively “standing in the shoes” of the uninsured or underinsured motorist who caused the accident and asserting the various defenses that person would be entitled to use.

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gavel

The statute of limitations places an outer time limit on the filing of certain types of claims, including those arising due to the negligence of a person, business, or governmental entity. Failure to file suit within the applicable time period is usually fatal to a claimant’s suit.

In addition, there may be a statute of repose that further limits the plaintiff’s time for filing suit. Again, failure to meet this important deadline usually results in dismissal of the claimant’s action.

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911 Call

An ambulance is supposed to help others, but what happens when the ambulance itself is in a wreck? For starters, the medical employees who are driving or riding in the ambulance are probably entitled to workers’ compensation payments if they are hurt. If the accident was the ambulance driver’s fault, the passenger’s legal recourse will probably be limited to workers’ compensation because the “exclusive remedy” doctrine will prevent him or her from suing the driver – a fellow employee – directly.

But what if the crash was someone else’s fault – like another driver who failed to yield to the ambulance’s emergency lights at an intersection? Potentially, the injured passenger could file a negligence claim against that driver. However, the workers’ compensation carrier would be entitled to subrogation for any monies that it had paid to the passenger for workers’ compensation benefits (like medical expenses or temporary disability).

Recently, a North Carolina court was called to rule on a case in which the workers’ compensation company – rather than the injured employee – had filed a negligence lawsuit against a driver who allegedly caused a collision with an ambulance.

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blasting area

When a person is hurt because of the conduct of others, the extent to which he or she may pursue monetary compensation from the responsible party (or parties) depends, at least in part, on the nature of the relationship between the plaintiff and the would-be defendant(s).

There are some defendants, including a plaintiff’s employer, against which liability may be limited. In a recent case, an injured man advanced a “novel argument” (as the Court of Appeals of North Carolina put it) as to why his case should be excepted from this general rule.

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Calendar

Under North Carolina law, the limitations period for a personal injury claim is generally three years. In most cases, this means that a party who fails to file a formal complaint in court within three years of an accident is without a remedy.

However, there is an exception in some cases. Known as the “relation back” rule, a claim asserted in an amended pleading may be deemed to have been filed within the statute of limitations if the original pleading gave notice of the transaction or occurrence at issue.

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repair shop

Most lawsuits pertaining to automobile accidents deal with the issues of liability, damages, and insurance coverage. Usually, the property damage portion of a car wreck case is resolved prior to trial. This is not always the case, however.

Recently, a North Carolina appeals court heard a case in which a jury awarded a man several hundred thousand dollars as a result of alleged misconduct in the repair of his vehicle following a motor vehicle collision.

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timing device

The expression “time is of the essence” is extremely important in the law. For example, a failure to file a claim within the period allotted by law is usually fatal to a would-be plaintiff’s legal rights.

Although the more typical situation resulting in the dismissal of an untimely complaint involves an injured person who did not make a claim within the statute of limitations, the issue can also arise in actions filed by insurance companies seeking to assert their rights under a policy of insurance.

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