North Carolina § 90-21 - 12. Standard of health care.

§ 90-21. 12. Standard of health care.

Except as provided in subsection (b) of this section, in any medical malpractice action as defined in G.S. 90-21.11(2)(a), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action; or in the case of a medical malpractice action as defined in G.S. 90-21.11(2)(b), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the action or inaction of such health care provider was not in accordance with the standards of practice among similar health care providers situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action. In any medical malpractice action arising out of the furnishing or the failure to furnish professional services in the treatment of an emergency medical condition, as the term "emergency medical condition" is defined in 42 U.S.C. § 1395dd(e)(1)(A), the claimant must prove a violation of the standards of practice set forth in subsection (a) of this section by clear and convincing evidence. History (1975, 2nd Sess., c. 977, s. 4; 2011-283, s. 4.1(a); 2011-400, s. 6.) Effect of Amendments. - Session Laws 2011-283, s. 4.1(a), effective June 24, 2011, updated the federal reference in subsection (b). Session Laws 2011-400, s. 6, effective October 1, 2011, and applicable to causes of actions arising on or after that date, rewrote the section. Legal Periodicals. - For comment on the statutory standard of care for North Carolina health care providers, see 1 Campbell L. Rev. 111 (1979). For article discussing the North Carolina medical malpractice statute, see 62 N.C.L. Rev. 711 (1984). For note suggesting the need for a new tort of breach of confidence, in light of Watts v. Cumberland County Hospital System, 75 N.C. App. 1, 330 S.E.2d 242 (1985), see 8 Campbell L. Rev. 145 (1985). For note, "Psychiatrists' Liability to Third Parties for Harmful Acts Committed by Dangerous Patients," see 64 N.C.L. Rev. 1534 (1986). For article, "The American Medical Association vs. The American Tort System," see 8 Campbell L. Rev. 241 (1986). For note on expansion of the application of res ipsa loquitur in medical malpractice, in light of Parks v. Perry, 68 N.C. App. 202, 314 S.E.2d 287, cert. denied, 311 N.C. 761 , 321 S.E.2d 142 (1984), see 21 Wake Forest L. Rev. 537 (1986). For note, "Nurse Malpractice in North Carolina: The Standard of Care," see 65 N.C.L. Rev. 579 (1987). For note, "Liability in the Absence of a Traditional Physician-Patient Relationship: What Every 'On Call' Doctor Should Know: Mozingo v. Pitt County Memorial Hospital," see 28 Wake Forest L. Rev. 747 (1993). For note, "The Evolution and Status of the Contributory Negligence Defense to Medical Malpractice Actions in North Carolina - McGill v. French," see 16 Campbell L. Rev. 103 (1994). For comment, "North Carolina's Limited Liability Company Act: A Legislative Mandate for Professional Limited Liability," see 29 Wake Forest L. Rev. 857 (1994). For article, "Senate Bill 33 Grants Protection to Emergency Room Providers ... and Just About Everyone Else, Too," see 91 N.C.L. Rev. 720 (2013). For article, "Medical Malpractice and Wrongful Death: Some Lives are Worth More Than Others," see 8 Elon L. Rev. 461 (2016). For comment, "Two Tiers of Plaintiffs: How North Carolina's Tort Reform Efforts Discriminate Against Low-Income Plaintiffs," see 96 N.C.L. Rev. 512 (2018). For article, "Aid in Dying in North Carolina,” see 97 N.C. L. Rev. Addendum 1 (2019).