NORTH CAROLINA GENERAL ASSEMBLY

1975 SESSION

 

 

CHAPTER 861

SENATE BILL 901

 

 

AN ACT TO DIRECT THE PROFESSIONAL LIABILITY INSURANCE STUDY COMMISSION TO STUDY: SHORTENING MALPRACTICE SUIT TIME, REQUIRING INFORMED CONSENT BY PERSONS TO BE TREATED BY HEALTH CARE PROVIDERS, AND CHANGING THE HEALTH CARE MALPRACTICE STANDARD.

 

The General Assembly of North Carolina enacts:

 

Section 1.  The North Carolina Professional Liability Insurance Study Commission created by 1975 North Carolina Session Laws Chapter 623 is directed to study, and to make recommendations for such consideration as it deems necessary, the matters contained in this act. In addition to dealing with the issues specified in Section 1 of its creating act, the Liability Insurance Study Commission shall report to the session of the General Assembly held in the 1976 calendar year on its study and recommendations on the following:

(1)        Shortening malpractice suit time (SB901/HB1240) as follows:

(a)        The desirability of amending G.S. l-15(b) by providing that the subsection shall not apply to an action arising out of the furnishing or failure to furnish medical, dental, or other care by a provider of health care, and that such an action shall be deemed to accrue at the time of the occurrence of or the failure to provide such care, except as otherwise provided by statute.

(b)        The desirability of amending G.S. 1-17 by providing that an action on behalf of a minor arising out of the medical, dental, or other care by a provider of health care shall not be instituted after the expiration of five years after the cause of action accrued or after such minor becomes seven years of age, whichever is later.

(2)        Requiring informed consent by persons to be treated by health care providers (SB902/HB1239) by enacting legislation as follows:

(a)        No recovery shall be allowed in any court in this State against a physician, dentist, or other provider of health care for examining, treating, or operating upon a patient without the patient's informed consent where:

1.         The action of the physician, dentist, or other provider of health care in obtaining the consent of the patient or of another person authorized to give consent for the patient was in accordance with an accepted standard of medical or dental practice among members of the medical or dental profession with similar training and experience in the same or similar medical or dental community; and

2.         A reasonable individual from the information provided by the physician, dentist, or other provider of health care under the circumstances would have a general understanding of the procedures or treatment and of the medically or dentally acceptable alternative procedures or treatment and of the substantial risks and hazards inherent in the proposed procedures or treatment which are recognized by other physicians, dentists, or similar providers of health care in the same or similar community who performs similar treatments or procedures; or

3.         The patient would reasonably, under all the surrounding circumstances, have undergone such treatment or procedure of which he complains had he been advised by the physician, dentist, or other provider of health care involved, in accordance with the provisions of paragraphs (a) and (b) of this section.

(b)        A consent which is evidenced in writing and which meets the foregoing standards, and which is signed by the patient or another authorized person, shall be presumed to be a valid consent. This presumption, however, may be subject to rebuttal only upon proof that such signature and consent was obtained by fraud, deception or misrepresentation of a material fact.

(3)        Changing the health care malpractice standard (SB903/HB1241) by enacting legislation providing that in any action for damages for personal injury or death arising out of the furnishing or the failure to furnish medical, dental, or other health care, the defendant or defendants shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such provider or providers of health care was not in accordance with the practices and procedures which were approved and accepted by the providers of such care in the community in which the action arose or in similar communities at the time such action arose.

Sec. 2.  This act shall become effective upon ratification.

In the General Assembly read three times and ratified, this the 26th day of June, 1975.