265 N.C. App. 475
N.C. Ct. App.2019Background
- On 24 Aug 2014 Anita Parkes arrived at a local ER within ~2 hours of stroke symptoms; Dr. James Hermann was the on‑duty emergency physician.
- The standard of care for ischemic stroke within three hours is administration of tPA (Alteplase); when given within three hours it confers a 40% chance of an improved neurological outcome.
- Dr. Hermann did not diagnose the stroke and did not administer tPA; Parkes suffered lasting neurological deficits.
- Parkes sued for medical malpractice alleging that Dr. Hermann’s failure to diagnose/administer tPA proximately caused her injury (or, alternatively, caused a compensable “loss of chance”).
- At summary judgment the trial court granted judgment for Dr. Hermann, finding Parkes failed to prove proximate causation by a preponderance of the evidence.
- Parkes appealed; the Court of Appeals affirmed, holding North Carolina does not recognize a distinct “loss of chance” claim in medical malpractice and Parkes could not show >50% likelihood she would have had a better outcome but for the negligence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Parkes proved proximate causation of her neurological injury by a preponderance | Parkes: had a 40% chance of improvement with timely tPA; the negligent failure deprived her of that chance | Hermann: Parkes cannot show >50% probability that negligence caused the worse outcome; thus no proximate cause | Court: Parkes failed to prove proximate cause (only 40% chance), so summary judgment for Hermann affirmed |
| Whether North Carolina recognizes a separate “loss of chance” cause of action in medical malpractice | Parkes: loss of a 40% chance is a cognizable injury compensable in negligence | Hermann: no separate loss‑of‑chance claim; plaintiff must meet traditional >50% causation standard | Court: North Carolina follows the traditional approach; loss of chance is not a recognized separate claim |
Key Cases Cited
- Forbis v. Neal, 361 N.C. 519 (discussing de novo review of summary judgment in tort cases)
- Ballenger v. Crowell, 38 N.C. App. 50 (establishing proximate cause requirement in medical malpractice)
- Caldwell v. Deese, 288 N.C. 375 (requiring facts be viewed in favor of nonmovant on summary judgment)
- White v. Hunsinger, 88 N.C. App. 382 (explaining that more than showing a different treatment would have improved chances is required for proximate cause)
- Gower v. Davidian, 212 N.C. 172 (refusing recovery based on mere chance; courts should not determine rights on chance)
- Curl v. American Multimedia, Inc., 187 N.C. App. 649 (noting recognition of new causes of action is a legislative policy decision)
- Henson v. Thomas, 231 N.C. 173 (same principle that changes in negligence law are for the legislature)