State’s top court urged to stand by 2022 ruling that overturned 90-year-old precedent

John Edwards, former U.S. senator and Democratic presidential candidate, argues before the N.C. Supreme Court. (Image from YouTube)

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  • Just three of seven N.C. Supreme Court justices voted last year to overturn a 90-year precedent involving nurses' protection from legal liability. The absence of a clear four-vote majority is prompting new legal action.
  • Defendants are asking the state's highest court to step back into the dispute. They want justices to clarify the impact of a majority decision that has secured just three votes.
  • Plaintiffs argued Thursday that the defendants are unhappy with the result of the case. Plaintiffs say a 3-2 ruling can overturn a high court precedent.

When the N.C. Supreme Court voted last year to overturn a 90-year-old precedent involving nurses’ legal liability, just three of the seven justices endorsed the change. Defendants in the case now hope the court will step back into the dispute to clarify the impact of a three-judge majority opinion.

Plaintiffs in the case filed paperwork Thursday urging the court to stand by its 2022 decision. Former U.S. senator and Democratic presidential candidate John Edwards is one of the lawyers representing the plaintiffs.

The court issued its initial 3-2 ruling in Connette v. Charlotte-Mecklenburg Hospital Authority in August 2022. At that time, Democratic justices outnumbered Republicans, 4-3. With one Democrat and one Republican recused from the case, the remaining justices split along party lines.

Since the Connette ruling, the high court’s composition has changed. Republicans now hold a 5-2 majority, and one of the justices recused in the 2022 decision has left the court.

“In an earlier appeal in this case, three Justices of this Court stated that they overruled a precedent of great significance to our State’s healthcare system,” wrote attorneys representing the hospital and certified registered nurse anesthetist Gus van Soestbergen. Their June 5 petition asked the state Supreme Court to take the case back from the N.C. Court of Appeals.

The precedent with “great significance” for N.C. health care was the 1932 case titled Byrd v. Marion General Hospital. It offered nurses some protection against legal liability.

In overturning the Byrd precedent, the high court left some issues unresolved, according to the petition.

“The three-Justice opinion did not address … whether three Justices have the power to reverse the Court of Appeals or to overturn precedent. Nor did the opinion address an existing line of cases that requires the assent of at least four Justices to reverse the Court of Appeals,” the defendants’ lawyers argued.

“By leaving these issues and cases unaddressed, the three-Justice opinion has created uncertainty on this Court’s powers and practices,” according to the petition.

“To resolve the uncertainty on these important issues, this Court’s guidance is needed. And it is needed now,” the defendant’s lawyers argued. “The key issue here, the authority of a three-Justice opinion, is one that only this Court can resolve. Thus, by granting review in the first instance, the Court will save time and resources for the parties, the trial court, and the Court of Appeals.”

“That is particularly true because the trial court has scheduled a new trial while this appeal is pending — a trial that might be mooted by this appeal,” the petition continued. “Delaying review would also come at great cost to the judicial system and to the public, both of which must grapple with the uncertainty created by the three-Justice opinion.”

In the latest court filing, plaintiffs’ lawyers rejected arguments about the uncertainty of a three-justice majority opinion.

“In the previous appeal of this case, a quorum of this Court considered the record before it, deliberated for nine months, and issued a binding mandate remanding this case to the trial court for a new trial and reversing long-standing Supreme Court precedent,” according to Thursday’s response to the defendant’s petition.

“This Court recognized that the ninety-year-old standard espoused in Byrd … was outdated and inconsistent with the practice of modern medicine,” plaintiffs’ lawyers wrote.

“Thus, after careful consideration, this Court reversed Byrd and its progeny, recognizing that today’s nurses have legal duties commensurate with their education and professional responsibilities,” according to the plaintiffs’ brief. “Defendants, apparently unhappy with this result, are now suggesting that this Court lacks power to overturn precedent.”

The Connette case followed actions taken in 2010. Then 3-year-old Amaya Gullatte suffered permanent brain damage, cerebral palsy, and “profound developmental delay” after a procedure for a heart condition at Carolinas Medical Center.

Amaya’s family sued the hospital, three doctors, and van Soestbergen, the CRNA involved in the medical procedure. Only van Soestbergen and the hospital remain as defendants in the current case.

A trial judge blocked testimony in 2018 that would have questioned the CRNA’s decisions in Amaya’s case. The judge cited a court precedent that stemmed from the Byrd case. It protected nurses from legal liability when they were working under a doctor’s supervision. In 2020 a unanimous N.C  Appeals Court panel affirmed the trial court’s decision to exclude evidence about the CRNA’s work.

Three state Supreme Court justices overturned that decision last summer.

“The trial court’s evidentiary ruling, and the Court of Appeals’ affirmance of it, was dictated by the application of the principle entrenched by Byrd … and its progeny which categorically establishes that nurses do not owe a duty of care in the diagnosis and treatment of patients while working under the supervision of a physician licensed to practice medicine in North Carolina,” wrote Justice Michael Morgan for the court’s 3-2 majority. “Due to the evolution of the medical profession’s recognition of the increased specialization and independence of nurses in the treatment of patients over the course of the ensuing ninety years since this Court’s issuance of the Byrd opinion, we determine that it is timely and appropriate to overrule Byrd as it is applied to the facts of this case.”

Justice Tamara Barringer wrote for the two dissenting justices. “The issue before this Court is whether a certified registered nurse anesthetist (CRNA) who collaborates with a doctor to select an anesthesia treatment can be liable for negligence in the selection of that treatment. Since 1932, this Court has held no, and the legislature has never required otherwise. In judicially changing this standard, the three-justice majority appears to create liability without causation — allowing a nurse to be held liable for negligent collaboration in the treatment ultimately chosen by the physician. Such a policy choice should be made by the legislature, not merely three Justices of this Court.”

The current state Supreme Court would have to choose whether to revisit the 10-month decision in Connette.