Medical malpractice cases can get extremely complicated, as a case that went to the North Carolina Court of Appeals clearly demonstrates. Marjorie Locklear, who underwent surgery in July 2012, is suing cardiologist Dr. Matthew Cummings for allowing her to fall from the operating table. She is also suing his employer, Duke University Health System.

Locklear had surgical instruments inside her body at the time of the fall. She was previously barred from filing a medical malpractice lawsuit because her claim did not include the proper language to do so. The May 16, 2017 ruling from the state’s appeals court allows her to move forward with suing her doctor for medical malpractice.

In her claim, Locklear states that Dr. Cummings became distracted during her cardiovascular surgery and failed to prevent her from falling from the operating table by not standing close enough to it. She filed the medical malpractice lawsuit just one day before the statute of limitations was set to expire. Locklear argues that the care she received during cardiovascular surgery was lower than the standard of care any patient should expect. This is what changes her lawsuit from one of ordinary negligence to medical malpractice.

When the case first went to trial, a judge in the Robeson County Superior Court agreed with Duke University Health System and Dr. Cummings that it didn’t meet the standard of medical malpractice. The reason for this is that Locklear did not disclose that the person she had review her medical records was expected to testify as an expert witness. She also didn’t include the required language for claims against a doctor or healthcare facility. They argued that this made her case one of ordinary negligence instead.

When Locklear’s case got to the state Court of Appeals, Judge Robert Hunter overturned the lower court’s dismissal that it only met the standard for ordinary negligence. In his ruling, Hunter stated that a fall from an operating table required him to consider whether Dr. Cummings used intellectual skill and proper clinical judgment. This consideration placed the case back into the category of medical malpractice.

In her complaint, Locklear used language that appears to justify medical malpractice, such as fall from an operating table, opened up, and having surgical tools inside of her body. The appeals court had to consider whether the action of falling from the table required her attending surgeons to have clinical judgment and specialized skill in order to prevent it.

Duke University Health System and Dr. Cummings argued that Locklear should not be allowed to appeal her claim because she did not make it clear whether it was for ordinary negligence or medical malpractice. The appeals court ruled against them because of the need to consider whether the plaintiff failed to include information that wasn’t even a legal requirement.

The majority ruling in the case felt that Locklear did present a claim for ordinary negligence. It agreed with the dismissal against the medical center for not complying with process or service requirements. The lone dissenter, Judge Phil Berger, Jr., stated that the argument for ordinary negligence should be abandoned because that’s not what Locklear was contending.

Plaintiff Marjorie Locklear was represented by Asby Fulmer and Walter “Bill” Hart of Charleston and Charlotte, South Carolina. Hart’s opinion of dismissing Locklear’s suit over not including medical language was that it gave precedence to legal formality over the substance of the claim. He agrees with Judge Calabria and Judge Hunter that it’s simply improper to allow a patient to fall off an operating table during surgery. The fact that she didn’t include precise medical terminology is a moot point.

Duke University Health Systems and Dr. Cumming were represented by three attorneys at the firm of Sumner & Harzog in Raleigh, Nouth Carolina. Jaye Bingham-Hinch, Katherine Hilkey-Boyatt, and David Ward had no comment about the decision of the state’s appeals court.

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