Parkes v. Hermann

This case presents the issue of whether North Carolina recognizes the “lost chances” theory of recovery in medical malpractice actions. 

In this medical malpractice action, the plaintiff was experiencing symptoms consistent with early onset of stroke.  She was taken to the emergency room.  Despite her presentation of stroke-like symptoms, her physician did not order administration of tPA within a three hour window, as required by the standard of care.  According to the only expert testimony in the record, had the tPA been promptly administered, the plaintiff would have had an ~40% chance of recovery with no significant morbidities.  By failing to administer the tPA, the defendant obliterated these chances.  At summary judgment, the trial court dismissed plaintiff’s claims because her chances were not above 50%.

NCAJ’s amicus brief, filed with its motion, explains why the Court should join the majority of states that have visited this issue and recognize lost chances as a separate cause of action.  While some states have simply relaxed the standard causation burden to achieve this result, NCAJ’s brief argues for keeping North Carolina’s traditional causation burden of “more likely than not” and simply recognize lost chances as a separate cause of action.  Further, we give the Court means with which to limit the cause of action by recognizing the importance of the fiduciary relationship, and the duty to rescue.  Additionally, we make it clear that the Court is unconstrained when ruling on common law causes of action.  Finally, we argue that obliterating significant chances of full recovery is an injury under North Carolina law.  Thus, the plaintiff in a medical malpractice action should be allowed to assert a claim for the negligent destruction of significant chances by her physician.