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N.C. Senate OKs malpractice reform

Posted March 2, 2011 6:29 p.m. EST
Updated March 3, 2011 9:45 a.m. EST

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.