North Carolina Senate Approves Cap on Malpractice Awards

By | March 4, 2011

Limits on medical liability lawsuits, including a cap on certain jury awards, cleared the North Carolina state Senate this week in legislation that Republican backers argue will keep malpractice insurance premiums stable and attract more doctors to practice in North Carolina.

The state Senate voted 36-13 in favor of the legislation that would limit initially to $500,000 what the bill calls “non-economic damages” for the patient, such as pain, physical impairment and disfigurement, in contrast to lost wages or medical bills. A floor amendment approved would raise that cap annually based on an inflation formula.

Republicans have sought the changes — particularly a cap — for years but had been turned back by Democrats when they controlled the majority in the chamber. The measure now heads to the House, which has a special committee looking at medical liability and other tort reform.

“This has been a long road many of us have walked,” said Sen. Tom Apodaca, R-Henderson, one of the bill’s primary sponsors, on the Senate floor. “And I know it’s not the end. It’s the start.”

The state’s trial lawyers group and others have said a cap on non-economic damages wouldn’t result in lower malpractice insurance premiums or overall health care expenses while at the same time would harm children and retirees that wouldn’t be compensated for lost wages because they have none.

Sen. Dan Clodfelter, D-Mecklenburg, said the cap is also unconstitutional because the right for a wronged person to seek damages to their property and well being from a jury is sacred, citing two state Supreme Court cases a century apart.

“We are sending a bill with very many good provisions out of this chamber into a certain court challenge and to likely invalidation of one of its central provisions,” he said.

The bill, which now goes to the House, also would make it harder for a patient to win in court against a doctor performing emergency room treatment. The doctors are making split-second decisions, and unlike other doctors, the emergency room doctors can be fined $50,000 by the federal government for failing to treat the patient, said Sen. Pete Brunstetter, R-Forsyth.

“These physicians do need a heightened level of care,” Brunstetter said.

A defeated amendment by Sen. Josh Stein, D-Wake, would have lowered the new “gross negligence” standard for an emergency physician. Stein said “gross negligence” would likely only apply to doctors who are drunk or impaired and sought intentionally to harm a patient.

“The unfortunate reality is that negligence occurs in emergency rooms and emergency cases,” Stein said. But under the bill, the costs of medical mistakes will be paid for by the patient and the state. “The responsible party, the one who was negligent, pays nothing. That is not fair.”

Six Democrats — two of them physicians – joined all Republicans voting to approve the bill.

More than 30 states have a limit or cap on damages in medical liability cases, according to the National Conference of State Legislatures. North Carolina already has a cap on punitive damages equal to the greater of $250,000 or three times the amount of compensatory damages. There is no current cap on compensatory damages.