Pre-Existing Conditions Can Cause Complications

Here’s an example to illustrate the issue: Imagine you had a herniated disk in your back. You received medical treatment for it in the past, but you never had surgery. You’ve had a nagging pain in your back for a few years, but it was something you learned to deal with. Now you’ve been in an auto accident that was someone else’s fault. The same disk in your back is now causing you severe pain, and you have gone back to your doctor and received treatment for the disk. Can you recover medical expenses and pain and suffering for your injured disk?

The Ultimate Issue: What Caused the Injury?

North Carolina law allows you to recover all damages that were “naturally and proximately” caused by the negligence of the tortfeasor. You can recover damages related to a health condition you already had, as long as you prove that the condition was activated, aggravated or made worse in a natural and foreseeable way. This is often achieved through the testimony of medical experts and treating physicians.

In the hypothetical scenario above, we would have to show that the disk in your back was aggravated (injured or made worse) in the traffic accident in order to recover damages related to your back. We would look at medical imaging to see any changes before and after the accident, and we would seek the opinion of medical professionals to prove that the condition in your back worsened as a result of the auto accident.

Medical Records and Insurance Companies

Insurance carriers and defense attorneys will comb through all of your medical history in an effort to avoid paying the full value of your claim. They will look to any evidence of a pre-existing health issue in an attempt to water down your damages. They will often claim that old-age, wear and tear, or some other mechanism caused a physical injury. It creates a significant challenge for any Plaintiff with a history of health problems.

However, a good lawyer can hold their feet to the fire. The personal injury attorneys at The Richardson Firm have decades of experience dealing with these issues. We have the resources, knowledge, and skill required to prove the truth, and we’ll fight for you every step of the way.

Several special rules apply in medical malpractice cases. These rules are the result of aggressive lobbying campaigns in the North Carolina General Assembly by physicians and their insurance companies.

N.C. Rule 9(j): An Expensive Hurdle Before the Race Begins

Medical malpractice. – Any complaint alleging medical malpractice by a health care provider pursuant to G.S. 90-21.11(2)a. in failing to comply with the applicable standard of care under G.S. 90-21.12 shall be dismissed unless:

(1)        The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care;

(2)        The pleading specifically asserts that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person that the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care, and the motion is filed with the complaint; or

(3)        The pleading alleges facts establishing negligence under the existing common-law doctrine of res ipsa loquitur.

Rule 9(j) was passed in 1995. It presents several challenges for anyone looking to pursue a medical malpractice claim in North Carolina.

Obtaining “ALL” Relevant Medical Records and Expert Review

Before a medical malpractice claim can be filed, all the Plaintiff’s medical records must be obtained and reviewed by an expert in the same field as the defendant medical provider.

Rule 702 adds additional requirements for specialists.

Fulfilling these requirements takes time and money. Obtaining medical records can take months, especially when dealing with government health care providers. Expert witnesses typically charge by the hour to review the records and provide an opinion about the standard of care provided to the Plaintiff.

The result: several months of time can pass and thousands of dollars can be spent before a malpractice action is filed. This financial hurdle is enough to wash out smaller malpractice claims, giving health care providers a “free pass” for small mistakes.

The Limit on Damages: A Smaller Trophy When the Race is Won

The North Carolina General Assembly passed additional protections for health care providers in the form of a cap on “noneconomic damages.” The current cap, as of January 1, 2023, is $656,730.

Non-economic damages include pain and suffering and lost enjoyment of life. No matter how much pain you have suffered and how much a physician’s negligence has ruined your life, your damages are capped.

There is one exception:

(1) The plaintiff suffered disfigurement, loss of use of part of the body,
permanent injury or death.
(2) The defendant’s acts or failures, which are the proximate cause of the
plaintiff’s injuries, were committed in reckless disregard of the rights of
others, grossly negligent, fraudulent, intentional or with malice.

It is extremely difficult to prove that a physician acted in a grossly negligent manner. The cap has only been “busted” in a few select cases in North Carolina since its inception.

Overcoming The Special Treatment

The protections outlined above present hurdles for any victim of medical malpractice in North Carolina. However, it is still possible to obtain justice if the right attorney is sought.

Attorneys Matt and Billy Richardson pursue medical malpractice claims for their clients in spite of these protections. If you’ve been injured by the negligence of a medical provider, call or contact us to set up a free consultation. We will provide you with an honest assessment of your case, and we will fight for every bit of compensation available.

Our court system in Cumberland County is a reflection of our community. Our bench is one of the most diverse in the state. 6 out of 10 of our District Court judges are women. The vast majority of our judges are registered Democrats. Superior Court Judge, Robby Hicks, is the lone Republican on the bench.

Here is a list of Cumberland County’s current, elected judges:

CURRENT CUMBERLAND COUNTY DISTRICT COURT JUDGES

Cheri Siler-Mack – Democrat (Term Ends: 2026)
Rosalyn Hood – Democrat (Term Ends: 2026)
Frances McDuffie – Democrat (Term Ends: 2026)
Stephen Stokes – Democrat (Term Ends: 2026)
David Hasty – Democrat (Term Ends: 2026)
Cullen Jordan – Democrat (Term Ends: 2024)
Lou Olivera – Democrat (Term Ends: 2024)
Toni S. King – Democrat (Term Ends: 2026)
Caitlin Evans – Democrat (Term Ends: 2026)
Tiffany Whitfield – Democrat (Term Ends: 2024)

CURRENT CUMBERLAND COUNTY SUPERIOR COURT JUDGES

Our Superior Court District (District 12) has four judges.

DISTRICT 12A – Claire Hill – Democrat – (Term Ends: 2026)
DISTRICT 12B – Gale Adams – Democrat – (Term Ends: 2028)
DISTRICT 12C – James Floyd “Jim” Ammons, Jr. – Unaffiliated – (Term Ends: 2026)
DISTRICT 12C – George (Robby) Hicks – Republican – (Term Ends: 2030)

Fayetteville and Fort Liberty: A Unique Legal Community

Unlike other southern towns of our size, Fayetteville has a transient population of military members and their families. Many of these individuals come when they are stationed at Fort Liberty and leave when their term of service has ended.

Fayetteville also has its share of large industry. Kelly Springfield (a Goodyear tire factory) has been around for decades and employed thousands of people, including my grandfather.

The Democratic Party has gained a stronghold on local politics. Our Mayor and a majority of our City Council are Democrats. However, like most southern towns, there is a wealthy element of blue-blood types that keep the country clubs in business. This pocket of Fayetteville is increasingly conservative.

This complexity presents a unique problem for an attorney looking to practice in Fayetteville. You can find a niche and specialize, or you can grow and attempt to serve everyone. At The Richardson Firm, we chose the latter.

The Richardson Firm: A Law Firm Built to Serve Fayetteville

Attorneys Matt and Billy Richardson have spent their entire legal careers in Fayetteville. They are active in their community, both professionally and politically. Billy Richardson served multiple terms in the North Carolina House of Representatives. In his spare time, Matt Richardson blogs about Fayetteville and North Carolina politics on his website: crosscreekdivide.com.

Matt and Billy Richardson have constructed a law firm to serve the needs of regular people in Fayetteville. They believe that every person should have a right to a good attorney, no matter their circumstances. Specifically, Matt and Billy Richardson represent the citizens of Fayetteville and Southeastern, North Carolina in civil matters, including:

• Personal Injury
• Medical Malpractice
• Auto Accidents
• Wrongful Death
• Eminent Domain and Property Law
• Insurance Disputes
  

Military Law

Attorney Kris Poppe joined The Richardson Firm as a partner in 2016 after nearly 35 years of military service, including over 20 years as an Army Judge Advocate.

Kris is able to assist with the specific legal needs of service members at Fort Liberty and other North Carolina bases, while also representing both military and non-military residents who have been charged with serious criminal offenses. Kris can assist in the following areas:

• Criminal Defense
  • Homicide
  • White Collar
  • Sexual Assault
  • Drug Offenses
• Federal Court Charges
• Court-Marital Defense
• Military Courts of Appeals
• Administrative Separation
• Officer Elimination
• Inspector General Investigations
• Board for Correction of Military Records
• Memorandum of Reprimands
• Non-Judicial Punishment Proceedings

Family Law and Divorce

The Richardson Firm has maintained a family law and divorce practice for several years. In 2023, Attorney Melinda Flinn joined the firm. Melinda has been practicing family law in Cumberland County for over twenty years, and she has gained a reputation as a steady and courageous advocate. She serves the residents of Fayetteville in the following areas:

• Child custody and visitation
• Child support
• Alimony
• Equitable Distribution (Property and debt division)
• Divorce
• Annulment
• Separation agreements
• Contempt
• Termination of parental rights
• Adoption
• Collaborative Law
  • Melinda has trained and participated in the Collaborative Law aspect of family law as an alternative to litigation.

Fort Liberty Traffic Tickets and DWI

Residents of Fayetteville and Fort Liberty who are charged with a traffic offense will be ordered to appear to answer the charges in federal court. While there are numerous attorneys practicing traffic law in Fayetteville, there are few who are licensed to practice in Federal Court. Seeing this need, Attorney Patrick Anstead has developed a robust defense practice. Patrick routinely appears in federal court on behalf of military and non-military residents who receive traffic tickets and DUI/DWI charges on Fort Liberty.

The Richardson Firm: Dialed Into Fayetteville’s Needs

If you live in Fayetteville or Cumberland County, and you’re in need of an attorney, give us a call at 910-488-5050. If we are not able to assist with your specific issue, we can use the contacts we have developed over the years to get you pointed in the right direction.

As an attorney practicing personal injury law in Fayetteville, North Carolina, my answer to this question will vary based on several factors:

Insurance: Who’s Writing the Check?

Due to complicated laws surrounding judgments and execution in North Carolina, obtaining money from an uninsured party can be like squeezing blood from a turnip. If the party is a massive corporation, like Walmart, Inc., then payment is not an issue. However, if you’re injured by a lower or middle-class person without insurance, or a corporation without many assets, you could wind up wasting a great deal of time and money for very little return.

If our clients were injured in a motor vehicle collision, we often look to uninsured (UM) or underinsured (UIM) motorist coverage for recovery. However, in other sorts of injury cases, where there is no statutory framework to protect innocent parties, we face significant challenges.

Getting The Insurance Policy

Car Accident Cases

In car accident cases, we’ll make an attempt to ask the auto insurance company for the policy limits. If they refuse, we are not out of luck. A North Carolina law (N.C.G.S. 58-3-33) requires the insurance company of an at-fault party to disclose the policy limits if the injured party agrees to the following:

• The person seeking the information submits to the insurer the person’s written consent to all of the person’s medical providers to release to the insurer the person’s medical records for the three years prior to the date on which the claim arose, as well as all medical records pertaining to the claimed injury.

• The person seeking the information submits to the insurer the person’s written consent to participate in mediation of the person’s claim under G.S. 7A‑38.3A.

• The person seeking the information submits to the insurer a copy of the accident report required under G.S. 20‑166.1 and a description of the events at issue with sufficient particularity to permit the insurer to make an initial determination of the potential liability of its insured.

Other Injury Cases

In non-automotive cases, at fault parties are not required to disclose their insurance information prior to a lawsuit being filed. Once a lawsuit is filed, we can request this information using formal discovery, specifically, under Rule 26 of the North Carolina Rules of Civil Procedure.

But what if we want to find out the insurance coverage prior to filing a lawsuit that could take months or even years to resolve? That is where the tactical skills of an experienced attorney can help. Every situation is different, but a good lawyer can often get the insurance information through negotiations with the other side.

Damages: What Does it Cost to Make You Whole?

Once we have decided that there is money available to recover, we turn to the issue of damages. The purpose of a civil action in tort is to make the wronged person “whole.” There is no way to waive a magic wand and heal your injuries, so the law attempts to quantify your loss in dollars. There are two types of damages we attempt to recover for our clients: economic and noneconomic.

Economic Damages: The Hard Numbers

Economic damages are easy to quantify. They represent specific amounts of money you were forced to spend, or money that you lost as a result of your injury. Some examples are:

• Medical Bills
• Lost Wages (Missing Work Due to Injury or Treatment)
• Loss of Earning Capacity
• Transportation Costs
• The Cost of Future Medical Care

Noneconomic Damages: The Grey Area

Noneconomic damages are more difficult to quantify. These damages are awarded by a jury based on your particular circumstances. Some include:

• Pain and Suffering
• Loss of Enjoyment of Life
• Mental Anguish

Proving these types of damages requires the skill of an experienced attorney. We often use testimony from friends, relatives, or health care professionals to illustrate the impact of an injury on our client’s daily life.

Noneconomic damages are capped by North Carolina law in medical malpractice cases. The amount of the cap is adjusted each year. The current cap is $656,730.

Medical Liens: Who Else Gets Paid?

One of the first steps we take in any injury case is to ask for our client’s health insurance information. Most health care plans have subrogation rights. This means that the health insurance company has a right to be paid back any amounts they paid to your medical providers for treatment related to your injury claim.

Here’s where it gets tricky: the rules are different for every plan.

Many health care plans falling under federal law (Medicare, Tricare, ERISA) require that we pay them back in full. Other plans falling under North Carolina law have caps. These plans can only take 50% of the total settlement, after attorney fees are deducted.

Negotiating The Lien Amount

Medical liens must be paid. If they are not paid, you could lose your health care coverage. However, we often have success negotiating the lien amount with the health insurance company. Any reduction we are able to obtain means more money in your pocket at the end of your case.

The Final Calculation

You have seen that it is not easy to calculate the value of an injury case until a great deal of work has been done by your attorney. Forgetting about insurance, unclaimed damages, and hefty medical liens can reduce the amount of money you receive at the end. Ultimately, the value of your case depends on your specific situation and the skill of your attorney.

If you’ve been injured or have questions about our legal services, please give us a call. We will be happy to evaluate your case, free of charge.

According to the National Institute of Health (NIH) more than 250,000 people die each year due to medical mistakes. This means that medical errors are the third leading cause of death in the United States – ranking only behind cancer and heart disease.

The attorneys at The Richardson Firm are familiar with medical practice laws and are here to explain a few common types of medical malpractice lawsuits.

Failure to make the correct diagnosis, birth injuries, and medication errors are three common types of medical malpractice lawsuits.

FAILURE TO MAKE THE CORRECT DIAGNOSIS

Although many doctors are extremely hardworking and competent, a medical error and a medical malpractice lawsuit may occur if a doctor makes a wrong or delayed diagnosis because he/she failed to notice something that another doctor working under similar conditions would have taken into account.

According to one study in the U.S., approximately 1 out of 20 patients are misdiagnosed. To make it worse, in about 50 percent of the cases, the misdiagnosis had the potential to result in severe harm.

BIRTH INJURIES

Birth injuries happen most often during labor and delivery. Every year in the U.S. approximately just under 30,000 babies are born with some form of birth injury. This means that a baby is born with a birth injury every 20 minutes. In many instances, the injuries are broken bones or damaged nerves.

MEDICATION ERRORS

According to NIH, approximately 1.5 million people are injured every year in the United States as a result of medication errors.

Medication errors can happen in several ways. In some cases, the patient is simply given the wrong medication. A patient can be given the wrong prescription by a doctor or pharmacist. Dosage mistakes are another common form of medication error. A nurse may give the patient more or less of a drug than required. Hospital equipment can also cause errors. If a patient is being given a drug through a pump and the equipment malfunctions, a dosage mistake can occur.

Age is another factor that can play a role in medication errors. Almost half of the fatal medication errors noted have occurred in people over the age of 60. This could be because older people are often on more medications than younger people.

CONTACT US

If you suspect you are a victim of medical malpractice, contact one of our professional malpractice lawyers in Fayetteville to schedule your consultation to discuss your situation. You may also contact us online.

Call us at 910-488-5050 to schedule a consultation with one of our attorneys. Most consultations are free.