Despite the efforts of its opponents, Tort Reform found its way into our state. By way of Senate Bill 33, the state of North Carolina placed caps on compensation, made ER doctors less accountable and placed heavier burdens on plaintiffs seeking compensation for medical malpractice. The bill passed July 2011 and went into effect on October 1, 2011.
Caps on noneconomic damages
SB 33 caps compensation for noneconomic damages at $500,000. “Noneconomic damages” refers to compensation for pain, suffering, personal loss, professional loss or anything else that cannot be defined monetarily. The cap applies even if there are multiple defendants in a lawsuit, providing an extra layer of financial protection for wrongdoers. There is an exception to this cap if the jury finds the defendant’s error to be particularly egregious or if the plaintiff(s) suffered disfigurement, loss or use of a body part, permanent injury or death.
Immunity for emergency personnel
In addition to the cap, SB 33 gave extra protection to emergency personnel by putting tougher standards to prove medical malpractice in an emergency situation. Plaintiffs must prove “gross negligence” when pursuing a malpractice case classified as an emergency. This does not only apply to the ER – this also applies to any medical professional acting in an emergency. There have been calls to amend this rule to only pertain to the ER, but these changes have not been made. Affording any type of medical professional immunity from litigation for life-changing mistakes is not permitted in most states. Thus, North Carolina citizens are not afforded the same type of legal recourse against negligent health care providers as fellow citizens in other states.
Burdens on the victim
Tough standards on evidence to prove malpractice in emergency situations is only part of the additional burden placed on plaintiffs. As personal injury attorneys, we know that time is of the essence and SB 33 contains a clause requiring plaintiffs to have separate trials for liability and damages upon a motion of “any” party. This benefits the defendants because it forces the plaintiff to incur additional trial costs and expenses. Two trials for the same lawsuit are unnecessary and place an additional burden on the injured party. Again, most citizens living in other states do not face these hurdles when try to obtain justice for an injury caused by a negligent health care provider.
The constitutionality of SB 33 has been called into question by Burton Craige, legal affairs counsel for the North Carolina Advocates for Justice. In his article “The Brave New World of Malpractice Legislation” (pages 16-18), he cites cases such as Osborn v. Leach which determined that that “the right to recover actual or compensatory damages is property”. Any limits on a citizens right to a jury trial is unconstitutional on a state level AND a federal level.
For information on how you can help stop Tort Reform legislation such as SB 33, see our previous blog post “What You Can Do To Preserve Justice”.