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On January 8, 2013, the North Carolina Supreme Court heard an argument in a medical malpractice case. However, it was not the typical med mal case where a victim has been allegedly injured or killed because of the negligence of a medical provider. In the case in question, that issue had already been resolved. What remains to be seen is who will get the funds that were awarded by a jury to a little girl and her family.

In 2000, an infant was seriously injured by a doctor during her birth. As a result, she cannot see or hear, and has many other disabilities. Her parents filed a lawsuit against the obstetrician that delivered her by caesarean. He allegedly had a drug problem and gave up his medical license just a few months after he delivered the victim. The jury understood the immense financial, physical, and emotional strain caused by the doctor’s negligence and the members awarded the family $2.8 million.

Now the state of North Carolina is attempting to take one-third of that amount as reimbursement for the amount Medicaid has paid to help care for the girl. According to state law, North Carolina can take one-third of a medical malpractice award, or the amount Medicaid has spent on the victim, whichever is less. However, federal law says this amount can only be taken from the damages awarded for medical costs, not pain and suffering. To make this particular case more challenging, there was no specific amount awarded for medical costs versus pain and suffering. So North Carolina is claiming one-third of the total amount awarded, and the family is saying they need the entire amount for the girl’s future care.

This case is being followed closely by parties with very differing views. Other states across the country are hoping that the court rules in favor of North Carolina because they want to be able to collect reimbursement for expenses paid by Medicaid. They are afraid that medical malpractice plaintiffs will start to claim that all funds received as compensation in a medical malpractice case were for pain and suffering so the states cannot collect any of it. Our North Carolina medical malpractice attorneys, like others throughout the U.S., are hoping the NC Supreme Court will allow this family, and others like them, to keep the money rightfully awarded to them, which they will need for the continuing care of their loved ones.

About the Editors: Our personal injury law firm has offices in Virginia (VA) and North Carolina (NC). The attorneys with the firm publish and edit articles on three Legal Examiner sites for the geographic areas of Virginia Beach, Norfolk and Northeast North Carolina as a pro bono service to the general public.


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