Health Law Section Charlotte Networking Breakfast Event

As a reminder, on Tuesday, Sept. 12 from 8 to 9 a.m, the NCBA Health Law Section will be hosting a networking breakfast.  We are excited for an opportunity for our members and friends of the section to have a way to mingle in person and learn more about our section. As you probably know, the Health Law Section is an active chapter, and there are many ways that you can get involved, from CLE planning to pro bono. There are also opportunities for reduced membership dues for law students, so join us to learn more!

The breakfast will be at Robinson Bradshaw’s Charlotte office, located at 101 N. Tryon St., Suite 1900.  Validated parking is available in the 101 Independence Center Garage (120 N. Church St.).

This a great opportunity for Health Law Section members in the Charlotte area.  For any questions and to RSVP, please contact:  See everyone on Tuesday!


Legislative Update For May 10, 2017

NCBA Health Law Section / N.C. Society of Health Law Attorneys

On behalf of the North Carolina Bar Association Health Law Section’s Legislative Committee,  we are providing the following 2017 post-crossover legislative update.

The North Carolina General Assembly has been considering a substantial number of bills of potential relevance to health law practitioners this session. The Health Law Section’s Legislative Committee, with the help of NCBA staff, has been monitoring these bills on virtually a daily basis.

The General Assembly’s rules provide for a “crossover date” during the legislative session, which this year was April 27. The importance of that date is essentially that, with certain caveats, unless a bill has passed one chamber (House or Senate) by the crossover date, the bill will no longer be considered by the legislature. The following listing provides brief descriptions of current proposed legislation, in two categories.

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Court Of Appeals Helps Clarify Line Between Ordinary Negligence and Medical Malpractice Claims


Prognosis Blog

By Todd Hemphill and Matthew A. Fisher

Since the 2001 amendments to Rule 9(j), N.C.R.Civ.P. and other related statutes, the line between whether a medical provider’s actions constitute medical malpractice or ordinary negligence has become much more important. A relatively recent N.C. Court of Appeals decision demonstrates the impact of coming down on the wrong side of that line, upholding the  dismissal of the Plaintiffs’ case alleging ordinary negligence, when discovery revealed that the Defendant’s actions, if proven, would constitute medical malpractice, and there was no Rule 9(j) certification.

In Gause v. New Hanover Reg’l Med.Ctr., __ N.C.App. __, 795 S.E.2d 411, 2016 N.C. App. LEXIS 1358 (Dec. 30, 2016), Plaintiff Gause was seriously injured in a fall during an X-ray examination at Defendant hospital.  She and her family brought an action for ordinary negligence and negligence on a theory of res ipsa loquitur.  During pre-trial discovery, evidence revealed that the fall occurred when an X-ray technician was rendering services requiring specialized skill and clinical judgment.  The trial court granted Defendant’s motion for summary judgment on the grounds that the Plaintiffs’ claim sounded in medical malpractice and failed to comply with Rule 9(j), N.C.R.Civ.P., because there had been no certification of expert review prior to filing the claim. The trial court dismissed Plaintiffs’ res ipsa loquitur claim and dismissed her ordinary negligence claim without prejudice. The trial court also denied Plaintiffs’ motion to amend the Complaint to add a claim of medical negligence.  Plaintiffs filed a Notice of Appeal.[1]

The Court of Appeals affirmed the trial court’s ruling. In analyzing the X-ray technician’s actions, the Court relied upon prior Court of Appeals decisions distinguishing medical malpractice from ordinary negligence claims.  Those cases defined medical malpractice claims as ones “alleging injury resulting from activity that required clinical judgment and intellectual skill,” and ordinary negligence claims as those “alleging injury caused by acts and omissions in a medical setting that were primarily manual or physical and which did not involve a medical assessment or clinical judgment.” 2016 N.C. App. LEXIS 1358 at p. 9 (citations omitted).

Applying those decisions to the facts of this case, the Court of Appeals relied in part on the deposition testimony of the X-ray technician, who testified that in deciding that it was appropriate for the patient to stand for her X-rays, he was exercising his professional judgment in trying to give the radiologist an optimal image without compromising the patient’s safety and comfort.  Perhaps even more damning to Plaintiffs’ case were the statements in their interrogatory answers, which contended “that Defendant, through its agents and employees, was negligent in furnishing or failing to furnish the following services: assessing the patient, inquiring about and reviewing the patient’s medical history, and administering the X-ray.”   Id. at p. 12.  The Court found that each of these services involved specialized knowledge and skills which were predominantly mental or intellectual, rather than physical or manual. Thus, because Plaintiffs’ claim sounded in medical malpractice, rather than ordinary negligence, and because the Complaint contained no 9(j) certification, it was subject to dismissal.

On the trial court’s denial of the motion to amend the Complaint, the Court of Appeals determined that Plaintiffs had failed to perfect their appeal of that issue, and therefore concluded that it did not have jurisdiction to review that Order.

Todd Hemphill and Matt Fisher are both partners and members of the Health Law Section in the Raleigh office of Poyner Spruill LLP.  Todd’s practice focuses on health care strategic planning issues, assisting provider clients in developing health care development strategies under the Certificate of Need law, negotiating health care transactions, and litigating Certificate of Need awards and denials.  Matt’s practice also focuses on the representation of health care providers, with an emphasis on HIPAA compliance, privacy and information security matters and Certificate of Need litigation.

[1] There is no discussion in the Court’s opinion regarding the res ipsa loquitur claim, so presumably, Plaintiffs did not appeal that portion of the trial court’s judgment.

Happy Blogging

Have you been wanting to write an article on a health law topic but are unsure how and where to publish it? Well, good news! The NCBA Health Law Section and N.C. Society of Health Care Attorneys are seeking articles for our new blog, Prognosis. The blog takes the place of the Prognosis newsletter, but the process for contributing an article remains the same: Simply prepare a post and send it to an editor (listed below). Each article will be accompanied by a photo and bio link to the author.

Please send all proposed publications to a member of the editorial board five days before the blog is to be posted to allow for review. The schedule for posting new blog publications in the next few months is as follows:

  • March 16
  • March 30
  • April 20
  • May 4
  • May 18
  • June 2

In addition to comprehensive articles on various health care topics, the blog will also carry announcements on events in the health care community and links to other sites of interest to readers.

We hope you will take advantage of this opportunity for recognition and career development and become a frequent contributor to the blog!

The Editorial Board

Michael Murchison, Co-Editor,

Ruth Levy, Co-Editor,

Tim McNeill,

Richard Saver,

Robert Shaw,

Amy Weaver,


New Bills With Health Law Impact

On behalf of the Legislative Committee of the Health Law Section Council, we are providing the following information to alert Health Law Section members regarding several recently filed bills at the North Carolina General Assembly that may affect your clients or your practice. Find the text and status of the bills at the links provided:

  • House Bill 88 and Senate Bill 73, each filed on Feb. 14, make substantial changes to the Nursing Practice Act.
  • House Bill 62, filed Feb. 8 and currently in the Committee on Health, creates certain communication requirements by health care professionals to their patients during drug-induced abortions.
  • House Bill 36, currently in the Committee on Health, affects the practice of optometry.
  • House Bill 57, currently in the Committee on Health, affects the interstate practice of physical therapy.
  • Senate Bill 42, currently in the Committee on Health Care, directs the Medical Care Commission to repeal certain hospital facility construction rules, and adopt the American Society for Healthcare Engineering’s Guidelines for the Design and Construction of Hospital and Outpatient Facilities.



Life After Obamacare?

By Marcus C. Hewitt
and Natalma “Tami” McKnew

In the wake of the 2016 presidential election, the healthcare industry is coping with the uncertainty of a new administration, especially in light of the President’s repeated pledges to repeal and replace the Patient Protection and Affordable Care Act (“PPACA” or “Obamacare”). A repeal could affect every corner of healthcare in the United States, and those implications will become clearer in the coming months. This article anticipates what form a repeal might take, and some implications for ACOs and Medicaid providers in particular.

Partial vs. Full Repeal

Regardless of campaign rhetoric, a sudden, outright repeal of PPACA is unlikely. Without a 60-vote supermajority in the Senate, a full repeal bill could be blocked by filibuster.1 Moreover, simply repealing the law midway through the 2017 coverage period without a transition period or provision for a delayed effective date would create chaos and potentially strip millions of ACA plan members of coverage overnight, while reviving insurers’ ability to decline to insure those with pre-existing conditions or other risk factors. It would also potentially deny Medicaid coverage to millions in states where Medicaid was expanded since 2014. In fact, President  Trump said in his first post-election interview that, while he prioritized moving quickly on Obamacare, he would consider leaving some parts of the law intact and that he liked certain provisions of the law.2

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Medicare and Medicaid Programs; Reform of Requirements For Long-Term Care Facilities

By Terri Harris, Susan Fradenburg and Katye Jobe


On October 4, 2016, the Centers for Medicare & Medicaid Services (“CMS”) issued a final rule reforming participation requirements for Skilled Nursing Facilities (“SNFs”). The rule will be implemented in three phases.  Phase 1 requirements should have been implemented by November 28, 2016, Phase 2 requirements must be implemented by November 28, 2017, and Phase 3 requirements must be implemented by November 28, 2019.  The final rule marks the first comprehensive update to the requirements for SNFs in 25 years. The rule contains completely new sections in addition to amendments to existing regulations, and we have highlighted selected changes in this article.

Notably, the rule includes a new pre-dispute ban on arbitration agreements between SNFs and their residents (or their representatives).  However, this ban was challenged by the American Health Care Association and others in a lawsuit filed on October 17, 2016. As a result, the section of the final rule prohibiting pre-dispute arbitration agreements was stayed and did not take effect on November 28, 2016, as originally planned. As of the date of this writing, the litigation challenging this part of the rule remains ongoing.  SNFs must still respond appropriately to the numerous other significant additions and changes contained in the rule that were implemented under the Phase 1 deadline of November 28, 2016.

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Health Law Section Chair’s Report

By Kim Licata

Happy holidays! This time of year gives us time to look back over the past months and forward to what’s ahead.  With this in mind, like my counterpart at the N.C. Society of Health Care Attorneys, President Jessica Lewis, I have the unique opportunity to welcome you to the new electronic-only Prognosis format. The hard work of our Newsletter Committee and the editors from the society has led to the successful launch of our new blog format.

At last year’s annual meeting in April,  the section welcomed new council members Andrew Walsh, general counsel for Partners Behavioral Health; Scott Templeton of Robinson Lawing; Sarah Crotts of Wall Babcock LLP; Ian Stauffer of Poyner Spruill, and Marc Hewitt of Smith Moore. We welcome back our council members from prior years as well. In addition to myself, our section officers are Jennifer Hutchens of Robinson Bradshaw as our vice chair, Kimberly Kirk of Moore Van Allen as our secretary, and Tina Simpson of Burgeon Legal Group as our treasurer.  Our Section Council and Committee members have been active so far this year in planning and I am looking forward to seeing all the great things we can do together this term.

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N.C. Society of Health Care Attorneys President’s Report

By Jessica M. Lewis

Happy holidays to my fellow members of the NC Society of Health Care Attorneys, and welcome to the new electronic-only Prognosis format.  Congratulations to the Editors and the NCBA Health Law Section Newsletter Committee for successfully bringing the new format to fruition.  It is certain to improve access to more timely content and thus continue to serve as a valued resource for many members of the Section and Society.

The Society wrapped up its 2015-16 year with an engaging Annual Meeting and CLE, full of both timely topics delivered by field experts and excellent networking opportunities afforded by the exceptional membership, sponsors, presenters, and attendees.  The Society welcomed to the Board Hilary Bowman as a Director, Robb Leandro as Secretary-Treasurer, and Elizabeth Runyon as President-Elect.  The Education Committee, now chaired by Elizabeth, has already begun to plan next year’s annual program, which will again be hosted at the ever popular Rizzo Center in Chapel Hill on October 6, 2017.  Please mark your calendars now!

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