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Recent Articles from Mark Mcgrath
COA ruling could open door to multiple Rule 9(j) motions
Based on recent activity from the appellate courts, there seems to be renewed interest in the vagaries of Rule 9(j). On April 21, the Court of Appeals issued its decision in Robinson v. Halifax Regional Medical Center. It has several angles that are worthy of discussion. Robinson involved the alleged wrongful death of a patient […]
Preston change-o? Supreme Court takes more lenient approach to Rule 9(j)
BY MARK MCGRATH Since its inception in 1995, Rule 9(j) has presented stout and unique challenges to medical malpractice victims. As its legislative history makes clear, lawmakers enacted it to eliminate frivolous medical malpractice cases by requiring pre-suit review of the case by a qualified medical expert who is willing to testify that the defendant […]
The Practical Litigator: Is Copeland a major shift, or a one-off?
On Jan. 7, the Court of Appeals issued a decision that could have far-reaching implications for imposing liability against real estate developers and other parties in premises liability and construction accident cases. The opinion in Copeland v. Crescent Communities, LLC et al. and it should be required reading for attorneys who represent parties on either […]
The Practical Litigator: How to avoid Rule 9(j) problems
By Mark McGrath In 2011 the General Assembly enacted sweeping tort reform legislation that changed the way medical malpractice cases are litigated in North Carolina, amending Rule 9(j) of the Rules of Civil Procedure to require pre-suit review of “all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable […]
Gift from the bench: A guide to getting expert witnesses into court
Over the past dozen years, qualifying out-of-town malpractice experts has become a nightmare. Trial courts have grown accustomed to rejecting any expert who is unable to regurgitate detailed demographic data for the community where the alleged malpractice occurred.
Effective date of tort reform a headache for lawyers and plaintiffs
On July 25, the General Assembly voted to override Gov. Beverly Perdue’s veto of Senate Bill 33, a tort reform measure that places draconian limitations on the ability of medical malpractice victims to seek redress in court. The bill reads like a Christmas wish list for malpractice insurers, the state Chamber and the medical lobby: noneconomic damages capped at $500,000, virtual immunity for pro[...]
Practical Litigator: Holding Bates Motel and its sort liable for on-site crimes
Showering in a strange motel room hasn't been the same since Norman Bates called on Janet Leigh one evening in 1960. Nothing makes a weary traveler think nice hot shower like the thought of a knife-wielding mollycoddle prowling the premises. Wearing a wig no less! Sweet dreams? Down the drain, like so much spiraling gore. While no comprehensive studies have quantified the recent data, anecdotal ev[...]
Practical Litigator: Who’s responsible for an injury at an unsafe workplace? Could be anyone
Construction accidents frequently give rise to third-party tort claims. Given the number of entities involved on major construction projects, the chances of identifying a culpable party that is not protected by the exclusive remedy provisions of the workers' compensation act are rather good.
Practical Litigator: Consider third-party premises liability when analyzing comp claims
By MARK McGRATH, Special to Lawyers Weekly [email protected] Somewhere in the dark recesses of our memories, most of us can recall a measure of what we learned during our first year of law school. Ah, how fondly I recall those salad days spent in torts class. Remember learning about the duties owed by property […]
Practical Litigator: Third-party cases in hiding – The corporate relative case
Several years ago a prominent and weather-tested workers' compensation lawyer from down east approached me at a CLE where I had just finished a presentation on inadequate-security cases. He represented the estate of a young woman who had been murdered while working at a check-cashing store, leaving behind two young children. The facts of the case were horrific. The woman was working alone on a Sat[...]
Practical Litigator: Employer negligence? Make sure the order spells it out
We all know that minor settlements need to be approved by a judge. But try and find the statute or case law requiring this exercise. Speaking objections cannot be made during depositions. But other than a handful of local rules that prohibit the use of speaking objections, try to find binding North Carolina case law or statutory authority that establishes such a rule. And so it is with the issue o[...]
Practical Litigator: ‘Prof. Pedant’ uses NC precedent to critique Campbell
When Bobby Campbell woke in the recovery room he knew right away that something was wrong. He had just come out of routine surgery on his right shoulder, but now his left arm and elbow were hurting and not working properly. His hand was tingly and it was hard to move it. Campbell never had […]
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