NORTH CAROLINA GENERAL ASSEMBLY
1975 SESSION

CHAPTER 977
HOUSE BILL 1293

AN ACT TO REVISE AND PROVIDE FOR PROCEDURAL AND SUBSTANTIVE LAWS GOVERNING CLAIMS FOR PROFESSIONAL MALPRACTICE: TO REVISE THE STATUTE OF LIMITATIONS FOR ADULTS AND MINORS; TO PROVIDE FOR A STANDARD OF CARE, A DOCTRINE OF INFORMED CONSENT, AN EXTENSION OF THE GOOD SAMARITAN LAW, AND THE ELIMINATION OF THE AD DAMNUM CLAUSE.

The General Assembly of North Carolina enacts:

Section 1.  G.S. l-15(b), as the same appears in the 1975 Cumulative Supplement to Volume 1A of the General Statutes, is amended by deleting the comma "(,)" following the word "death" in the second line and substituting the following:
"or one for malpractice arising out of the performance of or failure to perform professional services,".
Sec. 2.  G.S. 1-15, as the same appears in the 1975 Cumulative Supplement to Volume 1A of the General Statutes, is amended by adding a new subsection (c) to read as follows:
"(c)	Except where otherwise provided by statute, a cause of action for malpractice arising out of the performance of or failure to perform professional services shall be deemed to accrue at the time of the occurrence of the last act of the defendant giving rise to the cause of action: Provided that whenever there is bodily injury to the person, economic or monetary loss, or a defect in or damage to property which originates under circumstances making the injury, loss, defect or damage not readily apparent to the claimant at the time of its origin, and the injury, loss, defect or damage is discovered or should reasonably be discovered by the claimant two or more years after the occurrence of the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made: Provided nothing herein shall be construed to reduce the statute of limitation in any such case below three years. Provided further, that in no event shall an action be commenced more than four years from the last act of the defendant giving rise to the cause of action: Provided further, that where damages are sought by reason of a foreign object, which has no therapeutic or diagnostic purpose or effect, having been left in the body, a person seeking damages for malpractice may commence an action therefor within one year after discovery thereof as hereinabove provided, but in no event may the action be commenced more than 10 years from the last act of the defendant giving rise to the cause of action."
Sec. 3.  G.S. 1-17, as the same appears in the 1975 Cumulative Supplement to volume 1A of the General Statutes, is amended by designating present G.S. 1-17 as subsection (a) and by adding a new subsection (b) to read as follows:
"(b)	Notwithstanding the provisions of subsection (a) of this section, an action on behalf of a minor for malpractice arising out of the performance of or failure to perform professional services shall be commenced within the limitations of time specified in G.S. l-15(c): Provided, that if said time limitations expire before such minor attains the full age of 19 years, the action may be brought before said minor attains the full age of 19 years."
Sec. 4.  Chapter 8 of the General Statutes is amended by adding a new Article to read as follows:
"ARTICLE 13.
"Medical Malpractice Actions.
"§ 8-92.  Definition. — As used in this Article, the term 'health care provider' means without limitation any person who pursuant to the provisions of Chapter 90 of the General Statutes is licensed, or is otherwise registered or certified to engage in the practice of or otherwise performs duties associated with any of the following: medicine, surgery, dentistry, pharmacy, optometry, midwifery, osteopathy, podiatry, chiropractic, radiology, nursing, physiotherapy, pathology, anesthesiology, anesthesia, laboratory analysis, rendering assistance to a physician, dental hygiene, psychiatry, psychology; or a hospital as defined by G.S. 131-126.1(3); or a nursing home as defined by G.S. 130-9(e)(2); or any other person who is legally responsible for the negligence of such person, hospital or nursing home; or any other person acting at the direction or under the supervision of any of the foregoing persons, hospital, or nursing home.
"§ 8-93.  Standard of health care. — In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant 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 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 at the time of the alleged act giving rise to the cause of action.
"§ 8-94.  Informed consent to health care treatment or procedure. — (a) No recovery shall be allowed against any health care provider upon the grounds that the health care treatment was rendered without the informed consent of the patient or the patient's spouse, parent, guardian, nearest relative or other person authorized to give consent for the patient where:
(1)	The action of the health care provider in obtaining the consent of the patient or other person authorized to give consent for the patient was 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; and
(2)	A reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities; or
(3)	A reasonable person, under all the surrounding circumstances, would have undergone such treatment or procedure had he been advised by the health care provider in accordance with the provisions of subdivisions (1) and (2) of this subsection.
(b)	A consent which is evidenced in writing and which meets the foregoing standards, and which is signed by the patient or other authorized person, shall be presumed to be a valid consent. This presumption, however, may be subject to rebuttal only upon proof that such consent was obtained by fraud, deception or misrepresentation of a material fact.
(c)	A valid consent is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent.
(d)	No action may be maintained against any health care provider upon any guarantee, warranty or assurance as to the result of any medical, surgical or diagnostic procedure or treatment unless the guarantee, warranty or assurance, or some note or memorandum thereof, shall be in writing and signed by the provider or by some other person authorized to act for or on behalf of such provider.
(e)	In the event of any conflict between the provisions of this section and those of Article 7 of General Statutes Chapter 35 and Articles 1A and 19 of the General Statues Chapter 90, the provisions of those Articles shall control and continue in full force and effect.
"§ 8-95.  First aid or emergency treatment; liability limitation. — (a) Any person who renders first aid or emergency health care treatment to a person who is unconscious, ill or injured,
(1)	when the reasonably apparent circumstances require prompt decisions and actions in medical or other health care, and
(2)	when the necessity of immediate health care treatment is so reasonably apparent that any delay in the rendering of the treatment would seriously worsen the physical condition or endanger the life of the person, shall not be liable for damages for injuries alleged to have been sustained by the person or for damages for the death of the person alleged to have occurred by reason of an act or omission in the rendering of the treatment unless it is established that the injuries were or the death was caused by gross negligence, wanton conduct or intentional wrongdoing on the part of the person rendering the treatment.
(b)	Nothing in this section shall be deemed or construed to relieve any person from liability for damages for injury or death caused by an act or omission on the part of such person while rendering health care services in the normal and ordinary course of his business or profession.
(c)	In the event of any conflict between the provisions of this section and those of G.S. 20-166(d), the provisions of G.S. 20-166(d) shall control and continue in full force and effect."
Sec. 5.  G.S. 1A-1, Rule 8(a)(2), as the same appears in the 1969 Replacement Volume 1A of the General Statutes, is amended by adding thereto the following:
"Provided, however, in all professional malpractice actions, including actions against health care providers, wherein the matter in controversy exceeds the sum or value of ten thousand dollars ($10,000), the pleading shall not state the demand for monetary relief, but shall state that the relief demanded is for damages incurred or to be incurred in excess of ten thousand dollars ($10,000): Provided that at any time after service of claim for relief, any party may make request of claimant for written statement of the amount of monetary relief sought, and claimant shall, within 10 days after service of such request, serve said statement upon the requesting party, provided that said statement shall not be filed with the court until the action has been called for trial or until entry of default is requested." Provided, any statement of "the amount of monetary relief sought" which is served on an opposing party may be amended in the manner and at the time provided by G.S. 1A-1, Rule 15.
Sec. 6.  Article 2 of General Statutes Chapter 58 is amended by adding a new Section 58-21.1 to read as follows:
"§ 58-21.1.  Annual statements by professional liability insurers. — (a) Every insurance company authorized to write professional liability insurance in the State shall file in the office of the Commissioner of Insurance, on or before the first day of February in each year, in form and detail as the Commissioner of Insurance prescribes, a statement showing the items set forth hereinafter, as of the preceding thirty-first day of December, signed and sworn to by the chief managing agent or officer thereof, before the Commissioner of Insurance or some officer authorized by law to administer oaths. The Commissioner of Insurance shall, in December of each year, furnish to each of the insurance companies authorized to write professional liability insurance in the State forms for the annual statements: Provided that the Commissioner may, for good and sufficient cause shown by an applicant company, extend the filing date of such annual statement for such company, for a reasonable period of time, not to exceed 30 days.
PROFESSIONAL LIABILITY INSURERS: ANNUAL STATEMENT
(1)	Number of claims pending at beginning of year;
(2)	Number of claims pending at end of year;
(3)	Number of claims settled paid:
(a)	Highest award
(b)	Lowest award
(c)	Average award;
(4)	Number of claims closed no payment;
(5)	Number of claims to court in which award paid;
(6)	Number of claims out of court in which award paid;
(7)	Average amount per claim set up in reserve;
(8)	Total premium collection;
(9)	Total expenses less reserve expenses; and
(10)	Total reserve expenses.
(b)	The information contained within the reports as required by this section is to be used for internal statistical purposes only. Therefore, such information shall be privileged and not be disseminated to the general public however the statistics obtained therefrom should be available to the public."
Sec. 7.  If any provision of this act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.
Sec. 8.  This act shall not apply to pending litigation.
Sec. 9.  Sections 1, 2 and 3 of this act shall become effective on January 1, 1977, and shall apply to actions filed on or after that date.
Sec. 10.  The remainder of this act shall become effective on July 1, 1976.
In the General Assembly read three times and ratified, this the 12th day of May, 1976.