Durham County

Court: Heart patient can sue Duke Health over mid-surgery fall

Overruling a lower court, N.C. Court of Appeals judges say an elderly Pembroke woman can sue the Duke University Health System because an affiliated clinic and hospital physician let her fall off the operating table during cardiovascular surgery.

The three-judge panel’s split ruling rejected efforts by Duke Health and the surgeon, Matthew Cummings, to have the case dismissed because former patient Marjorie Locklear and her lawyer didn’t follow the rules for filing a medical malpractice case when they launched the suit in 2015.

Writing for himself and Judge Ann Marie Calabria, Judge Robert N. Hunter Jr. said the case looks more like a negligence claim than a malpractice one because keeping a patient from falling off the operating table isn’t something that should tax a medical professional’s “clinical judgment and intellectual skill.”

That drew a vigorous dissent from Judge Phil Berger Jr., who pointed out that Locklear and attorney Walter Hart had styled the lawsuit as a malpractice case from the beginning.

Hunter’s and Calabria’s interpretation of the law thus “creates a loophole” for them and “defeats the legislative intent” of the state’s malpractice lawsuit rules, said Berger, a new Court of Appeals judge who took office early this year and is the son of N.C. Senate President Pro Tem Phil Berger Sr., R-Rockingham.

Berger Jr. argued the panel instead should have hewed to a statute that requires malpractice plaintiffs to certify, when they first file a case, that they’ve had someone who can qualify as an expert witness study their medical records and say the treatment they got didn’t meet the normal standard of care.

There was no dispute that Locklear’s initial filing against Duke Health, Cummings and Lumberton’s Southeastern Regional Medical Center had lacked that certification.

In court briefs, Hart acknowledged that he’d “inadvertently used the certification language” of a previous, looser version of the statute when he filed the suit on Locklear’s behalf in the summer of 2015. But he argued Superior Court Judge Gregory Bell should’ve let him amend the complaint to fix what amounted to “a clerical error,” instead of dismissing the case.

The lawsuit stems from an incident that happened in the summer of 2012, when Locklear, then 75, was receiving medical treatment in the aftermath of a heart attack.

Cummings, who received his medical training at East Carolina University, had just joined the staff of Southeastern Regional. At least some of the hospital’s units, and a cardiology clinic in Lumberton to which Cummings was also tied, are Duke Health affiliates.

Duke officials, speaking through their lawyers, have admitted that Locklear fell off the operating table.

But they contend “no agent or employee” of Duke Health or its in-house physician network was actually responsible. In affidavits, Duke Health Executive Vice President Bill Fulkerson said neither was involved in overseeing Locklear’s care, that Cummings wasn’t their employee and that neither had any supervisory authority over him.

Tuesday’s Court of Appeals ruling sided with Judge Bell in dismissing Locklear’s parallel claims against Southeastern Regional. Panel members unanimously agreed Hart had erred by having a private process server deliver a copy of the lawsuit to hospital officials. Under state law, the job more properly belonged to the Robeson County Sheriff’s Office, they agreed.

Locklear’s lawsuit didn’t specify what sort of surgical procedure she’d received. The fall, however, left her with a concussion, double vision, a jaw injury and bruises, it said. The incident also happened while she was “opened up and had surgical tools in her,” the lawsuit said.

The Court of Appeals panel’s members are all Republicans. Duke and Cummings can appeal Tuesday’s ruling to the N.C. Supreme Court.

Ray Gronberg: 919-419-6648, @rcgronberg

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