The new GOP majority Senate in the General Assembly of North Carolina has just introduced the "wish list" of Medical Malpractice Tort Reform bills today. Senate Sponsors: Tom Apodaca(R), Tom Brown(R) and Bob Rucho(R).
This proposed Senate Bill S33 is a laundry list of of ways to limit the rights of normal citizens in NC. While physicians may THINK this proposed Bill will help them, in reality, the bill is a giant GIFT to the insurance industry because it simply reduces the amounts of money insurance companies might have to pay in legitimate claims. Or put another way, it limits the recovery of individuals whom a jury have determined are truly injured by medical negligence.
Here is a quick rundown on the Bill and my comments on the reality of the provisions.
EMERGENCY MEDICAL CARE- If your emergency room doctor commits negligence, you can't sue them. You can only sue if they are GROSSLY negligent, like, if they were drunk. So, when the ER doc gives your spouse an injection of penicillin, even though her medical chart says she is severely allergic to it, and she dies- too bad. Gross negligence is a very high standard in North Carolina.
BIFURCATION OF TRIALS ON ISSUES OF LIABILITY AND DAMAGES in any case over $75,000.
This means that in any case with a value of over $75,000 (which is almost every medical malpractice case out there) you essentially have two trials. The first part is on the question of negligence. Did the doctor make a mistake. The second part is on the damages. Sounds tempting and simple but the real reason behind this is two fold. First, it makes trials longer and more costly for the injured party. Many witnesses who could testify once, now have to testify twice. Experts are very expensive, sometimes $5,000 per day. Insurance Companies have nearly unlimited resources to bring in experts. Injured people do not. Second, by keeping out the damages, the jury does not have any idea how badly the mistake has affected the injured person. This "depersonalizes" the case which is an advantage to the Defendant.
LIMITING THE AMOUNT OF NONECONOMIC DAMAGES THAT MAY BE AWARDED ($250,000 cap on damages) As used in this section, 'noneconomic damages' means damages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, physical impairment, disfigurement, and any other nonpecuniary, compensatory damage. So if your child is burned on 90% of their body in a negligent surgical fire, they get about $3,000 a year for life. And of course, this cap on damages ONLY affects people who have a legitimate case, i.e., some one whom a jury has just determined is injured as a result of negligence. This cap also disproportionately effects retired people who do not have future lost earnings. And of course, this means insurance companies can get off cheap, even if a jury thinks a higher amount is warranted.
BY AUTHORIZING THE PERIODIC PAYMENT OF FUTURE ECONOMIC DAMAGES IN LIEU OF A LUMP-SUM PAYMENT. Basically, this is in there because if the person who is awarded damages by a jury dies later, their family will not inherit the money. It will go back to the insurance company.
MODIFYING APPEAL BONDS IN MEDICAL MALPRACTICE ACTIONS. This just makes it cheaper for insurance companies to appeal when they lose.
If approved, this act becomes effective October 1, 2011. (Better go to the doctor now.)
When "tort reform" was being debated on the Federal level, I produced a mock "Do It Yourself Tort Reform Release" which tried to demonstrate the reality of what the law makers were proposing. It got picked up by some national press and "went viral," in as much as something about the law goes viral.
So, if you just can't wait for Medical Malpractice "tort reform", just download this handy form, sign it, and take it to your next doctor's appointment.
I was hoping I would never have to resurrect this link, but here it is: Download Do It Yourself Medical Malpractice Tort Reform Release 2011