§ 90-21.51. Duty to exercise ordinary care; liability for damages for harm. - North Carolina Statutes

§ 90‑21.51.  Duty to exercise ordinary care;liability for damages for harm.

(a)        Each managed care entity for a health benefit plan has theduty to exercise ordinary care when making health care decisions and is liablefor damages for harm to an insured or enrollee proximately caused by itsfailure to exercise ordinary care.

(b)        In addition to the duty imposed under subsection (a) of thissection, each managed care entity for a health benefit plan is liable fordamages for harm to an insured or enrollee proximately caused by decisionsregarding whether or when the insured or enrollee would receive a health careservice made by:

(1)        Its agents or employees; or

(2)        Representatives that are acting on its behalf and over whomit has exercised sufficient influence or control to reasonably affect theactual care and treatment of the insured or enrollee which results in thefailure to exercise ordinary care.

(c)        It shall be a defense to any action brought under thissection against a managed care entity for a health benefit plan that:

(1)        The managed care entity and its agents or employees, orrepresentatives for whom the managed care entity is liable under subsection (b)of this section, did not control or influence or advocate for the decisionregarding whether or when the insured or enrollee would receive a health careservice; or

(2)        The managed care entity did not deny or delay payment forany health care service or treatment prescribed or recommended by a physicianor health care provider to the insured or enrollee.

(d)        In an action brought under this Article against a managedcare entity, a finding that a physician or health care provider is an agent oremployee of the managed care entity may not be based solely on proof that thephysician or health care provider appears in a listing of approved physiciansor health care providers made available to insureds or enrollees under themanaged care entity's health benefit plan.

(e)        An action brought under this Article is not a medicalmalpractice action as defined in Article 1B of this Chapter. A managed careentity may not use as a defense in an action brought under this Article any lawthat prohibits the corporate practice of medicine.

(f)         A managed care entity shall not be liable for theindependent actions of a health care provider, who is not an agent or employeeof the managed care entity, when that health care provider fails to exercisethe standard of care required by G.S. 90‑21.12. A health care providershall not be liable for the independent actions of a managed care entity whenthe managed care entity fails to exercise the standard of care required by thisArticle.

(g)        Nothing in this Article shall be construed to create anobligation on the part of a managed care entity to provide to an insured orenrollee a health care service or treatment that is not covered under itshealth benefit plan.

(h)        A managed care entity shall not enter into a contract with ahealth care provider, or with an employer or employer group organization, thatincludes an indemnification or hold harmless clause for the acts or conduct ofthe managed care entity. Any such indemnification or hold harmless clause isvoid and unenforceable to the extent of the restriction. (2001‑446, s. 4.7.)