376 N.C. 320
N.C.2020Background
- On Aug. 24, 2014 Anita Parkes presented with acute neurological symptoms consistent with stroke; she was seen by Dr. Hermann at a small hospital and was not timely diagnosed or treated with tPA.
- A neurologist later concluded the time window for tPA had passed; Parkes alleges the delay was negligent and caused permanent neurological deficits and additional medical harm.
- Plaintiff’s expert opined that tPA would have increased the chance of a good neurological outcome by roughly 13 percentage points, producing at best a ~39–40% chance of improved recovery, with a measurable risk of harm.
- Defendant moved for summary judgment arguing the stroke, not physician negligence, proximately caused Parkes’s injury and that North Carolina does not recognize a separate loss-of-chance claim; the trial court granted the motion and the Court of Appeals affirmed.
- The North Carolina Supreme Court affirmed: Parkes failed to prove by a preponderance of the evidence (>50%) that defendant’s negligence caused her diminished neurological function, and the Court declined to recognize loss of chance as a separate, compensable common-law injury, leaving that policy change to the legislature.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Parkes proved proximate causation that defendant’s negligence more likely than not caused her diminished neurological function | Parkes: expert evidence shows tPA would have increased her chance of a better outcome, but she concedes the evidence does not directly prove >50% causation of current deficits | Hermann: the stroke—not the alleged failure to administer tPA—proximately caused the injury; plaintiff cannot show negligence was the probable cause | Held: Parkes failed to meet the >50% causation standard (evidence showed at best ~40%); no recovery for the physical injury under traditional proximate-cause rules |
| Whether ‘‘loss of chance’’ (diminished opportunity for a better medical outcome) is a separate, cognizable injury recoverable in NC medical-malpractice law | Parkes: loss of chance is an independent injury; the diminished probability (≈30–40%) is compensable even if <50% | Hermann: NC has not recognized loss-of-chance as a separate cause; plaintiff’s theory would improperly relax proximate-cause and damages rules | Held: Court declined to recognize loss-of-chance as a separate recoverable injury under NC common law; adoption would be a policy change for the legislature |
| Whether courts should create/expand common-law doctrine here or defer to the legislature | Parkes: courts routinely adapt common law to new circumstances and should adopt loss-of-chance (many jurisdictions have done so) | Hermann: recognizing loss-of-chance would depart from NC precedent and proximate-cause principles; such policy questions belong to the legislature | Held: Court refused to alter NC proximate-cause/damages rules and left any change to the legislative branch |
Key Cases Cited
- Gower v. Davidian, 212 N.C. 172, 193 S.E. 28 (1937) (expert speculation that immediate treatment would have improved chances is insufficient to establish proximate cause)
- Parkes v. Hermann, 265 N.C. App. 475, 828 S.E.2d 575 (2019) (Court of Appeals affirmed summary judgment; evidence showed at best a 40% chance)
- Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480 (1945) (physician liable only when injurious result flows proximately from negligent care)
- Rabon v. Rowan Mem’l Hosp., Inc., 269 N.C. 1, 152 S.E.2d 485 (1967) (discussing the court’s role in evolving common law and abandoning outdated rules)
- Matsuyama v. Birnbaum, 452 Mass. 1, 890 N.E.2d 819 (2008) (recognizing loss-of-chance in medical negligence as a compensable injury)
- Smith v. Providence Health & Servs.-Oregon, 361 Or. 456, 393 P.3d 1106 (2017) (Oregon Supreme Court recognized loss-of-chance as an injury under medical negligence law)