Professional Negligence Law Reporter

The North Carolina Supreme Court held that loss of chance is not a separate cause of action in the state.

Here, Anita Parkes believed she might be having a stroke. She went to a hospital, where she underwent a CT scan of her head. A treating physician allegedly then told Parkes’s primary care physician that she had no neurological deficits; however, Parkes’s neurological condition worsened. A neurologist later examined her and told the primary care physician that the opportunity for administering time-sensitive tPA had passed.

Parkes sued one of the treating physicians, alleging delayed diagnosis and treatment of the stroke. The plaintiff also asserted that appropriate medical care would have increased her chances of an improved neurological outcome.

The defense moved for summary judgment. The trial court granted the motion, and an intermediate appellate court affirmed, holding that by presenting evidence showing that there was just a 40% chance that her condition would have improved had the defendant rendered a proper diagnosis, the plaintiff failed to show it was more likely than not that the defendant’s negligence had caused her condition. The appellate court also held that loss of chance was not a separate cause of action in North Carolina.

Affirming, the state high court found that losing the chance for an increased opportunity for a better outcome is not a recognized and compensable claim in the state. Under traditional notions of proximate cause, the court said, a negligence claim may proceed when the evidence shows that the negligent act more likely than not caused a plaintiff’s injury. Where the evidence falls short of this standard, there is no recovery, the court said. The court declined to follow a lesser standard of allowing a medical negligence claimant to offer evidence showing that a defendant’s negligence possibly caused injury. Such a ruling would create an anomaly for medical negligence actions, the court found, adding that it would also require a departure from common law proximate cause principles, a policy decision better suited for the legislature.

Consequently, summary judgment was proper.

Citation: Parkes v. Hermann, 2020 WL 7414986 (N.C. Dec. 18, 2020).