News Archives

2011

2010

2009

2008

2007

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2011

November 2011

 

Katie Bulfer has joined NM&S working in the litigation section of the firm. Katie is a 2000 graduate of Purdue University and a 2006 graduate of the Wiggins School of law at Campbell University. She worked for several years in Raleigh before re-locating, with her husband and family, to Asheville. Katie will spend most of her time with the firm doing work that Ike will take credit for. Read her full biography here.

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Ike Northup successfully defended a vascular surgeon in a recent trial in Cleveland County, North Carolina. The defendant physician was called to repair an injury to the popliteal artery which occurred during surgery on the patient by another physician. Despite the defendant's best efforts, the patient went to suffer an above the knee amputation of her left leg. The case presented complex issues of the various techniques for restoring blood flow to an ischemic limb. The defense presentation was aided by a number of visual aids used to illustrate normal circulation and the interruption of flow resulting from the arterial injury. After 7 days of trial, but only 35 minutes of deliberation, the jury found in favor of the defendant physician. The photograph below was taken in the jury room after the jury had returned their verdict and been excused.

 

October 2011

 

Beth McConnell recently assisted three medical practices in resolving complaints by patients made to The Department of Health and Human Services alleging HIPAA violations. These complaints to DHHS were resolved without hearing or penalty because of timely and appropriate response from the practice formulated by Ms. McConnell. In addition to addressing the complaints, Ms. McConnell revised the clients' Policies and Procedures to prevent future HIPAA violations and to assist the defense of any future allegation of a HIPAA violation. One patient also filed a lawsuit against the physician personally based on North Carolina common law invasion of privacy arising from the alleged HIPAA violation. This matter was dismissed after aggressive discovery uncovered deceit by the patient. Whether North Carolina courts will recognize an invasion of privacy cause of action based on a HIPAA violation remains unanswered. Two of the patients also filed complaints with the North Carolina Medical board concerning the alleged HIPPA violation. These matters were able to be resolved without any disciplinary action against the practice or physician. Our practice has recently seen an uptick in the number of HIPAA violations alleged against physicians. We are working with a number of our clients to proactively prevent future claims.

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Julie Northup joined the firm effective October 1 as Of Counsel. Julie has practiced employment law for a number of years in Atlanta. She will continue her work in that area with NM&S but will also use her years of litigation experience to assist in other practice areas in which the firm is also involved.

 

September 2011

 

Brady Fulton and Ike Northup successfully defended a hospitalist in Boone NC on allegations that she was negligent in not making a timely diagnosis of a patient who developed necrotizing cellulitis after being bitten by a dog and hospitalized for treatment. The necrotizing condition which developed required the surgical removal of a large portion of the patient's lower leg. The defense offered testimony that the care provided was within the appropriate standard and after eight days of trial the jury agreed.

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Ike Northup was named in the national directory of Super Lawyers for the twelfth time.

 

August 2011

 

In the firm's patent litigation practice, a client recently obtained a truly outstanding result in a matter of months. Working on behalf of his client that sells and distributes camping gear, Brady Fulton successfully enforced the exclusionary rights of two United States Patents. Brady obtained a consent judgment order for his client which included a permanent injunction issued by the U.S. District Court for the Western District of North Carolina that prohibits his client's competitor from making, using, selling, offering for sale or advertising the products accused of patent infringement during the life of the patents, which do not expire until 2027.

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Brady Fulton recently won summary judgment for his client in a federal court case involving the sale of multiple aircraft worth millions of dollars. Brady's client, an airplane dealer, was originally sued for approximately $3 million in damages for alleged breaches of contract. Brady's client counterclaimed for several things, including the enforcement of a promissory note with a balance of $600,000. The parties filed cross-motions for summary judgment, and the federal judge ruled that all of the claims against Brady's client should be dismissed or were abandoned. The court also held that Brady's client was entitled to a judgment for the balance due on the promissory note, plus interest. Finally, the court ruled that Brady's client is entitled to proceed to trial on several of its counterclaims, with a value of approximately $1.3 million dollars. The trial on the remaining counterclaims is set for September.

 

April 2011

 

Brady Fulton won the dismissal of a medical malpractice case, convincing the Court that the plaintiff had failed to comply with North Carolina's requirement that a plaintiff have a case reviewed by a competent expert witness before it can be filed. Discovery revealed that plaintiff's expert did not meet the statutory definition of competence to offer an expert opinion against the firm's client, a radiologist, and for that reason, and based on clear precedent, the Court ordered the case dismissed against Brady's client.

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Ike Northup and Brady Fulton tried a case of alleged malpractice by a bariatric surgeon. Three weeks after gastric bypass surgery the plaintiff sustained the loss of virtually her entire small bowel and had special damages of approximately $1.5 million dollars. After two days of deliberation the jury was unable to reach a unanimous verdict, deadlocking 9-3 in favor of the defense. The case will be retried this fall.

 

January 23, 2011

 

Ike Northup was again recognized as a North Carolina Super Lawyer in the area of business litigation.

 

January 21, 2011

 

Brady Fulton recently won a summary judgment for his client, an auto repair shop that was sued for negligence. The plaintiff alleged in the lawsuit that his car caught fire and was destroyed because of incorrect repairs by the auto repair shop. Brady, however, persuaded the Court that the plaintiff could not prove his case, and that the case should be dismissed without a trial, because the plaintiff did not have sufficient evidence that any work done by the auto shop caused or contributed to the fire.

 

2010

November 2010

 

The firm recently obtained a defense verdict in a case brought against a urologist for injuries to a patient during a ureteroscopy and stone basketing procedure. The patient suffered the known complication of ureteral injury, which required rebuilding of the ureter. Claims were made for medical expenses in excess of $120,000.00, personal injury, permanent injury and loss of consortium. Witnesses for the defense included the Chairman of the Department of Urology for UNC Hospitals as well as two other urologists in private practice. After a half-day of deliberation the jury returned a verdict of no negligence by the physician.

 

October 2010

 

Ike Northup and Beth McConnell successfully defended an emergency room physician on allegations that he negligently failed to diagnose a developing cauda equina syndrome in a patient. The trial, in Buncombe County, lasted almost two weeks. It was undisputed that the plaintiff did go on to develop cauda equina syndrome and that he is now permanently disabled, walks with braces and must use mechanical assistance to relieve himself. Despite that evidence, the jury returned a verdict in 16 minutes, finding no negligence by either the NM&S client nor the co-defendant neurosurgeon, who was consulted by the emergency room defendant.

 

August 2010

 

Ike Northup has again been included in the current edition of The Best Lawyers in America in the specialties of medical malpractice law and personal injury litigation. The law firm of Northup McConnell & Sizemore has been selected as a member of the Martindale-Hubell Bar Register of Preeminent Lawyers.

 

June 2010

 

A recent victory by Brady Fulton was the lead article in the June 7, 2010 edition of Lawyers' Weekly. The case, Durkee v. Xata, was a products liability claim against the manufacturer of an on-board communication device installed in a transfer truck. While attempting to use the device the driver was involved in a tragic collision. Plaintiffs filed against the device manufacturer, saying the device was inherently dangerous in its application. Brady argued that the negligence here was that of the driver, that the product did not malfunction and that a manufacturer does not have a duty to forsee negligent misuse of a product by the end user. The Magistrate Judge has recommended the matter be dismissed.

 

April 2010

 

Ike Northup was a featured speaker at the annual meeting of the Legal Support Staff of North Carolina Inc. The meeting was held in April in Asheville. Ike provided an overview of substantive and procedural aspects of medical malpractice litigation in North Carolina.

 

March 2010

 

The firm is currently representing the plaintiffs in an action against a local development company. Just recently the North Carolina Court of Appeals affirmed an order of the trial court denying the defendants' motion to compel arbitration, allowing the case, brought by Robert Allen and Ike Northup on behalf of a local kitchen designer, to remain on track for a jury trial. The case involves claims that defendants wrongfully used designs created by the the plaintiffs. Defendants had asked the court to compel arbitration in the matter, a motion opposed by the plaintiffs.

 

February 2010

 

Ike Northup and Brady Fulton were successful in defending a radiologist in a malpractice claim involving allegations that a CT scan was misread, resulting in a non-diagnosis of a stroke. The patient was left with a devastating injury, but the jury found no negligence on the part of the physician. The case presented the usual problems of hindsight bias and the "Where's Waldo" phenomenon of once you see it, it is clearly visible. The jury deliberated for more than a day but did decide that the radiologist met the standard of care in his interpretation of the CT scan.

 

January 2010

 

Ike Northup has been recognized for his litigation and trial expertise by again being named to the "North Carolina Super Lawyers" list of attorneys for 2010.

 

In addition to practicing law full-time, Steve Sizemore was recently elected as Chairman of the Buncombe County School Board. With three children currently in the school system, Steve is pleased and honored to have this opportunity to serve the citizens of Buncombe County.

 

Robert Allen successfully litigated a case last year which resulted in one of the more significant recent opinions from the North Carolina Court of Appeals. The case of Pike v. Fiore Construction Services, Inc., (North Carolina Lawyers Weekly No. 09-07-1096), involved a construction worker who fell on a construction site, suffering a traumatic brain injury. The plaintiff sued the general contractor on the project contending that the contractor was liable, based upon numerous alleged OSHA violations and safety infractions on the job site. After litigating the case for more than a year, and over twenty depositions of witnesses, physicians, psychiatrists, and the plaintiff's OSHA expert, the court granted summary judgment to the defendant contractor. The plaintiff then appealed the Order of summary judgment to the North Carolina Court of Appeals. In December, the court affirmed the decision of the trial court granting summary judgment to the defendant. In doing so, the Court found that the general contractor owed no duty of care to the plaintiff, rejecting the plaintiff's argument that the often cited case of N.C. Commissioner of Labor v. Weekly Homes, L.P., 169 N.C. App. 17 (2005), was applicable to civil tort liability. The court went on to address the limited circumstances where a general contractor may owe a duty of care, significantly clarifying the law as to a general contractor's duties to employees of subcontractors.

 

Ike Northup and Brady Fulton recently spoke to a large group of physicians on malpractice issues and litigation. Their presentation focused on the role of hindsight bias in affecting the way health care providers view a medical chart when they first view the information, knowing that a claim of medical malpractice is being pursued. Other topics discussed included the duty of a physician to report adverse findings and the appropriate use of physician practice extenders.

 

2009

Ike Northup was named to the directory "Best Lawyers in America" for the tenth straight year.

That publication recognized him for his skills in the areas of personal injury and business litigation trial expertise.

 

Ike Northup speaks at the 2009 North Carolina Association of Defense Attorneys

Ike Northup was one of the speakers in the area of medical malpractice law and procedure at the 2009 North Carolina Association of Defense Attorneys fall seminar. Ike spoke on the appropriate structure of discovery scheduling orders, evidentiary questions at trial and the scope of expert testimony of subsequent treating physicians. The fall seminar occurs yearly in Greensboro and is attended by insurance claim managers, attorneys and other persons involved in defense work.

 

August 20, 2009

Firm Wins Dismissal of Complaint -- May Obtain Attorneys' Fees

Representing the firm's client, a home inspector, Brady Fulton argued for and obtained dismissal of the plaintiff's complaint. The plaintiffs had brought suit against the home inspector, alleging that he negligently performed an inspection of their home. Citing North Carolina's "economic loss rule," Mr. Fulton convinced the Court that the plaintiff's complaint failed to state a claim upon which relief could be granted, and had to be dismissed because the home inspection was performed under a written agreement, which prohibited claims of this type. The plaintiffs argued that the contract was not controlling, but the Court sided with the firm's client and dismissed the complaint against him. The written agreement also provides that the plaintiffs can be held liable to pay the home inspector's attorneys' fees if they bring an unsuccessful legal action against him. Mr. Fulton asserted a counterclaim for attorneys' fees under the contract, and that claim is still pending before the Court.

 

July 21, 2009
The Jury Returns Verdict of No Negligence

The Jury returned a verdict of no negligence in the Burke County trial of a radiologist represented by the firm. The case involved a missed finding of a brain tumor on a CT scan, resulting in allegations of delayed diagnosis and treatment. Although the tumor was in fact not reported by the physician at the time he read the scan, the defense centered on the idea that a failure to see what is on a CT scan is not necessarily, in itself, negligence. The jury agreed.

 

July 17, 2009
Plaintiff Voluntarily Dismisses Suit Against Firm's Client

After analyzing the record and finding a subtle, yet fatal, flaw in the service of process in a civil suit, the firm moved to dismiss the claim against its client before answering the Complaint. Just three days before the motion to dismiss was to be heard and decided by the Court, the Plaintiff voluntarily dismissed the lawsuit. Because of this swift and decisive victory, no discovery was taken in the case and the firm's client reaped substantial savings of time and money.

 

April 2009
The firm Welcomes Brady Fulton as our Newest Member

Read Brady's biography to learn the expertise he adds to the mix.

 

February 20, 2009
No Negligence Found in Malpractice Action Against Surgeon

A patient sued his physician in Cleveland County after a surgical procedure left him with a permanent femoral nerve injury resulting in chronic pain and significant loss of function in his right lower extremity. Patient claimed total disability. This firm represented the general surgeon who performed a total colectomy on this patient with serious intestinal disease. The procedure necessitated the use of a retractor to allow the surgeon visualization and access to the intestine. Allegation in the malpractice action was that the surgeon malpositioned the retractor and did not monitor the position of the retractor resulting in compression of the femoral nerve. The case was successfully defended. The jury found no negligence on the part of the surgeon, returning a defense verdict.

 

February 2009
Victory in Malpractice Action Against Local Hospital

Ike Northup and Beth McConnell represented the community Hospital in Newland, North Carolina. This malpractice action asserted the inaction of nursing staff caused the death of a 61-year-old man who collapsed while being transferred to ICU. Patient could not be resuscitated and died. The case was tried for 3 weeks in Avery County North Carolina. The jury returned a defense verdict.

 

January 16, 2009
Successful Verdict in Medical Malpractice Lawsuit

Attorney Ike Northup tried to jury verdict a Medical Malpractice action in Gaston County, North Carolina. The case involved a retained sponge allegedly left after a C-section performed by the Defendant surgeon. Plaintiff had undergone other abdominal procedures in the past. Plaintiff had several years of lower right quadrant pain and ultimately had surgery to remove a large lap pad consistent with the type used during surgeries. Our client admitted he had a duty to remove foreign objects before closing a patient at surgery. The jury was not convinced this sponge was left behind at the time of the C-section rather than another surgical procedure. Neither was it convinced our client had violated his duty to do his best to remove foreign objects at surgery. The jury found no negligence on the part of our client, returning a defense verdict.

 

2008

November 14, 2008
Malpractice Suit in Cleveland County Ends Successfully with Defense Verdict

This firm represented a family practitioner sued by the estate of a patient claiming medical malpractice resulting in wrongful death. The patient was a 19-year-old male who weighed over 350 pounds. Patient reported to the family practitioner that he had "pulled" his chest muscle at work while lifting. Patient had pain with inspiration. Patient was sent home on pain medicine and told to call if he got worse or had new symptoms. Two days later, while at home, the patient had a sudden pain in his leg, collapsed and died of a massive pulmonary embolism. Autopsy showed older emboli had been occurring at the time of the office visit with the family practitioner. The trial lasted over a week. The jury found no negligence on the part of our client returning a defense verdict.

 

October 2008

Successful Defense of Orthopedic Surgeon in Buncombe County

Plaintiff was rendered quadriplegic after three surgeries were performed on her cervical spine by the firm's client, an orthopedic spine surgeon. The hardware used in the initial procedure pulled free from bone resulting in multiple procedures. Plaintiff was a 62 year old female . The jury agreed that our client used his best judgment, complied with the standard of care and returned a verdict of no negligence.

 

February 2008

Defense Verdict for Haywood County Physician

This firm represented a Haywood county pulmonologist who allegedly neglected to appropriately follow his 32 -year- old patient for a lung nodule. Patient alleged she should have been followed with serial CT scans. It was alleged the patient lost the opportunity for early treatment of lung cancer. The patient developed metastatic lung disease. The trial took place in Haywood County. The jury found no negligence.

 

2007

November 2007

No Negligence Found in case of Alleged Delay of Emergency Surgery

Ike Northup tried and won this medical malpractice case in Catawba County, NC. It was alleged that the orthopedic surgeon negligently delayed emergency surgery of a patient suffering from clear signs and symptoms of cauda equina syndrome resulting in permanent loss of bowel and bladder function. The jury agreed with defense and found no negligence.

 

October 2007

Defense Victory in Avery County

Patient's estate alleged wrongful death resulting from an alleged delay in transfer of a 450 pound patient with severe back pain and fever. This firm represented the treating physician at the hospital. The physician was unable to accomplish scans of the patients back as the equipment at the hospital could not accommodate the patient's size. Transfer of the patient was accomplished the next day to a tertiary care facility where the patient underwent a myelogram and surgery evidencing spinal abscess. Unfortunately the patient died shortly after surgery. No negligence was found by the jury.

 

February 2007

Victory for defendant Cardiac Surgeon in Catawba County

A patient suffered a post-operative bleed after cardiac surgery. The allegation of negligence was that the bleed was not recognized in a timely fashion causing plaintiff to suffer from shock requiring multiple transfusions and resulting in extended rehabilitation and permanent injury. This firm represented the surgeon who had operated on the patient and was attending to her in the post-operative period. The jury found no negligence on the part of our client, returning a defense verdict.