Lake: Medical damages cap 'unconstitutional'

Posted February 9, 2011

Retired state Supreme Court Chief Justice I. Beverly Lake

Critics of a proposal to reform medical malpractice laws have a new, high-profile ally: former NC Supreme Court Chief Justice I. Bev Lake, Jr.

Senate Bill 33 would make several sweeping changes to North Carolina’s medical liability law. The most controversial is a proposed $250,000 cap on “non-economic” compensatory damages – the money juries award for pain and suffering, disfigurement and other damages that aren’t really economically quantifiable.

Lake, also a former state senator and deputy Attorney General, sent a letter Wednesday to Senate Judiciary Chairman Pete Brunstetter, calling the damages cap “unnecessary” and “unconstitutional,” and asking him to remove it from the bill.

“North Carolina citizens have a ‘sacred and inviolable right’ to have a jury determine the amount of compensatory damages, including noneconomic damages, under our Constitution,” Lake wrote. “The right to have a jury make that decision cannot be eliminated or restricted by the General Assembly.”

Lake also argued that in cases where a verdict is excessive, trial judges already have the power to find a verdict excessive. But even they have to offer the plaintiff a choice between a reduced award or another trial.

Brunstetter, himself an attorney, offered a chilly reaction to Lake’s letter: “He’s a private citizen and is entitled to his opinion.”

Brunstetter, R-Forsyth, is expected to bring the measure before his committee early next week. He said he doesn’t agree with Lake’s case for constitutionality. “He’s a respected member of the bar, and I’m sure people will look at it, but I don’t think it’s necessarily going to be dispositive on this issue.”

Brunstetter also noted that Lake is currently “involved with a plaintiff’s firm.” Lake is senior counsel for the Shanahan Law Group, which practices in a long list of areas, including personal injury and medical malpractice.

Reached for comment, Lake said he’s not sure what Brunstetter was trying to say. “Throughout my career, I’ve done both plaintiff’s work and defense work. I’m not swayed one way or other.”

“I’m inclined to think we need some tort reform,” Lake explained, “but I don’t think we need to eliminate the right everybody has to get compensated for the injuries they have – pain and suffering, disfigurement, paralysis. If a jury decides that victim deserves compensation, I don’t think the courts can take that decision away.”


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