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N.C. Senate OKs malpractice reform

Posted March 2, 2011
Updated March 3, 2011

The North Carolina Senate gave approval Wednesday to a sweeping overhaul of the state's medical malpractice laws.

Senate Bill 33 would give emergency room doctors more protection against lawsuits by changing their malpractice standard from ordinary negligence to “gross negligence.”

Supporters say the change is needed because federal law doesn’t let emergency room doctors choose their patients. They’re required to treat anyone who needs help, no matter how difficult the case or how many other patients they’re treating at the time. That makes emergency medicine a riskier specialty than other areas of practice.

The bill’s opponents say the change is too extreme. Sen. Josh Stein, D-Wake, says “gross negligence” requires “willful” misconduct. He told the Senate an emergency room provider “would have to be drunk, on drugs or engaged in some other outrageous behavior” to be liable for his or her mistakes under the new standard.

“How does this promote patient safety?” Stein asked. “Negligence still exists, but the victim pays for it. The responsible party pays nothing. That’s not fair.”

Another controversial provision would cap non-economic damages for patients at $500,000. Economic damages (lost earnings) and medical payments would not be capped. Bill sponsor Sen. Tom Apodaca, R-Henderson, says the cap will lower the cost of malpractice insurance, especially in high-risk specialties like obstetrics and neurology.

Critics of the cap on lost earning potential say they don’t think it should apply to measurable injuries like paralysis, brain damage or death. They say it would create “tremendous inequity” in the system.

“A child who loses both arms and both legs is worth $500,000,” said Senate Minority Leader Martin Nesbitt, “but a surgeon who loses both arms and both legs is worth tens of millions. If you’re worth a whole lot in earning power, then you’re worth a whole lot as a human being. I don’t think that’s what we want to do.”

Sen. Dan Clodfelter, D-Mecklenburg, argued that capping damages is unconstitutional – an opinion shared by former North Carolina Supreme Court Chief Justice I. Beverly Lake Jr.

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

But the bill’s sponsors don’t agree with that argument. They say malpractice reform will lead to lower health-care costs and more access to doctors, especially in underserved rural areas. The measure passed the Senate by a 34-13 margin, with six Democrats voting for it, including two who are physicians. The House is likely to take it up next week.

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  • mustangnut Mar 3, 2011

    "Economic damages (lost earnings) and medical payments would not be capped."
    Bravo! Exactly what malpractice was meant to do in the first place, not make greedy lawyers filthy rich. This is the type of healthcare reform that we should have had in the first place!

  • Tax Man Mar 3, 2011

    ugogirl -is that the law, the attorney must pay the costs of litigation if they lose, not the client? Because that is not what most lawyers do - they make you pay the costs as you go they only collect the fees off what they win, but as a percentage of the award without taking out the costs. I think we need a non-lawyer insurance claim process - or have lawyers handle these cases who are paid an annual salary rather than a percentage of the award. The award should all go to the victim and the fees should be paid by the losing party. And insurance companies should not be allowed to settle if the doctor did not actually commit malpractice unless the doctor consents to a settlement.

  • Tax Man Mar 3, 2011

    The other thing they need to do is make it illegal for attorneys to charge "contingent" fees - or cap the % to no more than 5% of the award and after the lawyer has paid all costs of litigation - otherwise just pay for the actual lawyers time. If we take big fees out of the picture then we will save billions of dollars! I like tort reform almost as much as union reform!

  • Arapaloosa Mar 3, 2011

    Finally, some real healthcare reform!

  • jpt Mar 3, 2011

    This is a travesty for those most injured and vulnerable. Legalizing negligence is just wrong regardless of who causes the negligence.

    How is allowing an emergency room physician to give horrible treatment with no check and balance on his/her behavior okay? Essentially, in this bill, unless the doctor is drunk, he/she has no check and balance otherwise on their behavior. We all just witnessed a plastic surgeon make a horrible choice driving drunk that killed a woman. Why are we exempting doctors from the consequences of their actions?

    The really sad part is that California has the highest malpractice rates and has had this “reform” since the 1970s. THe malpractice insurance companies has continued to charge high premiums even in years they have made lots of money.

    The ones who will be hurt are the citizens of North Carolina. THe only winner is the insurance companies.

  • blackdog Mar 3, 2011

    Best Senate an insurance industry could ever buy.

  • ugogirl Mar 3, 2011

    For those of you who "think" this is great, you are sadly mistaken. You obviously don't know anyone who has been serious hurt by a medical malpractice mistake. You also have no clue on the steps that a potential claim has to go through before someone can sue a doctor. Before you go thinking this will favorably affect YOUR health care insurance costs, take note: In a study published in 2010, medical malpractice claims comprise only 0.25% of all civil cases. Only an average of 496 malpractice claims are filed in NC each year. The doctor or hospital wins at trial 86% of the time. The median jury award is $320,000.00.
    Did you know it can cost $150,000+ in actual expenses (does not include attorneys fees) to bring a medical malpractice case to trial. These wonderful attorneys take these cases on contingency, so if they do not win, they get no money. That $150,000 they invested in preparing this case...gone. So before you judge these trial attorneys, you should get your facts straight.

  • Dark of the Moon Mar 3, 2011

    Most excellent.

    I am so thrilled with the work our new state legislature has been doing.

    Fixing so many wrongs created over the last 100 years by the liberals.

    Keep up the GREAT work!!!!!!

    Charlton Dude