The North Carolina Court of Appeals revives a lawsuit for a woman who fell off an operating table during cardiovascular surgery.
A Robeson County woman undergoing surgery in 2012 fell off the operating table while her body was cut open and had surgical implements inside, her lawsuit against the medical personnel and hospital says.
The woman’s case was dismissed by a Robeson County judge in 2016 but revived by the state Court of Appeals on Tuesday.
The lawsuit says Marjorie C. Locklear of Pembroke, then age 75, had suffered a heart attack in 2012 and needed follow-up cardiovascular surgery because of it.
During the surgery in Lumberton, “Plaintiff was allowed to fall off the operating room table while Plaintiff was opened up and had surgical tools in her,” Locklear’s lawsuit says.
When she landed, her head and the front of her body struck the floor, the lawsuit says. She “suffered a concussion, had double vision, injured her jaw, and was bruised and battered on her left side,” the lawsuit says.
After the incident, Locklear had repeated nightmares about falling off the table, the lawsuit says.
Locklear sued surgeon Matthew S. Cummings and Southeastern Regional Medical Center of Lumberton. She also sued Duke University Health System, which managed the Heart Center at Southeastern Regional, and Duke University Affiliated Physicians Inc. and Duke Cardiology and Cardiovascular Surgery of Lumberton.
She requested damages for negligence plus punitive damages.
In 2016, Superior Court Judge Greg Bell dismissed the case against all the defendants.
He said Southeastern was not properly given notice of the lawsuit. Locklear’s lawyer used a civilian process server, yet the law required the suit to be served by the Sheriff’s Office.
The Court of Appeals agreed with Bell on that point, and so the case against Southeastern remains dismissed.
But the ruling reinstated the lawsuit against Cummings and the Duke entities.
Bell had dismissed the case against the doctor and Duke entities on the premise that Locklear’s lawyers failed to follow the procedures required when suing for medical malpractice. The lawyers failed to get an expert to review the facts and say that Locklear received substandard medical care.
And there lies a key dispute in this case: a medical malpractice lawsuit, or one of just “ordinary negligence.”
A medical malpractice case would allege that medical personnel failed to correctly use their “specialized skill or clinical judgments,” the Court of Appeals opinion says.
The doctor and the Duke entities contend the case is an allegation of medical malpractice, so the case should have been dismissed.
Locklear and her lawyers say it’s ordinary negligence to let someone fall off a table, not a matter of specialized skills.
(This isn’t discussed in the ruling, but by suing under an ordinary negligence premise instead of medical malpractice, Locklear avoids a tort reform law passed in 2011 that put a cap on damages in medical malpractice lawsuits.)
In a 2-1 vote, a three-judge Court of Appeals panel sided with Locklear this is an ordinary negligence claim.
Judge Robert N. Hunter Jr. wrote the opinion and Judge Ann Marie Calabria voted with him.
Judge Philip Berger Jr. dissented. Berger concluded that the case is a medical malpractice lawsuit, saying the manner in which medical personnel handle a person’s body during surgery is a matter of medical care and treatment.
Because the ruling is divided, the case automatically qualifies for review by the North Carolina Supreme Court.
Staff writer Paul Woolverton can be reached at [email protected], 486-3512 and 261-4710.