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The patient rolled off the operating table. Justices aren’t sure she can sue.

Court historian Danny Moody straightens the Chief Justice’s chair in the chambers of the Supreme Court of North Carolina at the Law and Justice Building in downtown Raleigh. The seven-justice court on Friday overruled a year-old N.C. Court of Appeals decision in a medical-malpractice case.
Court historian Danny Moody straightens the Chief Justice’s chair in the chambers of the Supreme Court of North Carolina at the Law and Justice Building in downtown Raleigh. The seven-justice court on Friday overruled a year-old N.C. Court of Appeals decision in a medical-malpractice case. 2007 News & Observer file photo

N.C. Supreme Court judges don’t want the courts to use any legal sleight-of-hand to keep alive a medical-malpractice case that alleges a doctor affiliated with the Duke University Health System let a patient fall off the operating table.

The seven-justice court on Friday overruled a year-old N.C. Court of Appeals decision that reshaped patient Marjorie Locklear’s lawsuit as an ordinary negligence claim to get around a procedural roadblock.

Justices agreed that it’s “not the role of the appellate courts” to act in that way, they said in an unsigned opinion.

But they didn’t close the door on further proceedings, as they sent the case back to the Court of Appeals for it to decide whether Locklear should get a chance to revise her lawsuit.

Locklear and her lawyer, Walter Hart, are suing the Duke Health System over a 2012 incident at Lumberton’s Southeastern Regional Medical Center, where Locklear, then 75, was receiving care following a heart attack.

Locklear was having a heart catheterization and in the midst of the procedure rolled off the operating table, Hart said in court filings. She suffered a concussion, jaw injuries and bruises.

A malpractice lawsuit followed in 2015, targeting Duke Health, the Lumberton center (now called Southeastern Health) and surgeon Matthew Cummings. Some units of the Lumberton hospital and a cardiology clinic Cummings was tied to are Duke Health affiliates.

Duke’s lawyers have admitted that the incident happened, but they’ve disputed claims that the health system or its in-house physician network were responsible. Duke Health Executive Vice President Bill Fulkerson has said Cummings wasn’t their employee and the system and its network didn’t have any authority over the surgeon.

The procedural problem comes because state law requires would-be malpractice plaintiffs to certify that they’ve had someone capable of serving as an expert witness review the medical file and say the doctors involved didn’t provide the normal standard of care.

Legislators intended the law to weed out frivolous lawsuits before they ever reach the courtroom, the N.C. Supreme Court has said.

Locklear’s original filing lacked the necessary certification. Hart in court briefs has admitted “inadvertently us[ing] the language” of a earlier version of the law. But a trial judge wouldn’t let him amend the lawsuit.

Hart told the Supreme Court he and Locklear had hired a doctor and a nurse to serve as expert witnesses and secured their opinions in writing before filing the lawsuit.

Court of Appeals Judges Robert N. Hunter Jr. and Ann Marie Calabria, in an opinion penned by Hunter, said the case looked more like a negligence claim and hinged on whether preventing the fall required “specialized skill or clinical judgment.”

The third member of the all-Republican appeals panel, Judge Phil Berger Jr., disagreed. He said because Locklear and Hart filed a malpractice claim, judges have to apply the rules the N.C. General Assembly has laid down for malpractice cases. Berger’s father is N.C. Senate President Pro Tem Phil Berger Sr., R-Rockingham.

The state Supreme Court justices — four Democrats and three Republicans — agreed with Berger Jr.

But on Friday they also used the unanimous opinion from a second, otherwise unrelated malpractice case to give lower-court judges more leeway to give plaintiffs a chance to revise and resubmit a lawsuit to meet the expert-certification requirement.

According to that opinion such rewrites are OK “when the expert review and certification occurred before the filing of the original complaint.”

Friday’s decision in Locklear’s case instructed the Court of Appeals to take a look at Hudson’s ruling and “address whether the trial court erred in dismissing [Locklear’s] complaint.”

It further noted that precedent suggests it would undermine “the clear intent of the legislature” to allow a revision of a lawsuit if the “expert review occurred after the suit was filed.”

Ray Gronberg: 919-419-6648, @rcgronberg
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