Personal Injury Law

NC House Bill 542 may give immunity to not only Emergency Room doctors but also to doctors delivering babies

NC House Bill 542 the Omibus "Tort Reform" Bill, has a provision that on its face seems to give immunity to "Emergency Rooms" for negligence.  But the Bill is very subtle in the way it defines "emergency."  This information was brought to my attention by a lawyer who used to be a Hospital Administrator and know how EMTALA works.  The drafters of the Bill used legal "slight of hand" to also make the Bill give complete immunity from negligence to any Doctor, nurse, or Hospital delivering a baby under anything than scheduled visit. Child_in_wheelchair

Here is the language from the proposed law:

In any medical malpractice action arising out of the furnishing or the failure to furnish services pursuant to obligations imposed by 42 U.S.C. § 1395dd for an emergency medical condition as defined in 42 U.S.C. § 1395dd(e)(1), the defendant health care provider  shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the health care provider's deviation from the standard of care required under subsection (a) of this section constituted gross negligence, wanton conduct, or  intentional wrongdoing. Nothing in this subsection shall be construed to change, alter, override,  or otherwise affect the provisions of G.S. 90-21.14, 90-21.15, 90-21.16, or 20-166."



42 U.S.C. § 1395dd is EMTALA , the Emergency Medical Treatment and Active Labor Act, and it says:

(b) Necessary stabilizing treatment for emergency medical conditions and labor (1) In general

If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either—
(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or

(B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section.

 

(e) Definitions

In this section:

(1) The term “emergency medical condition” means—

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions—

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

Legal Slight of Hand

It certainly looks like the lobbyists for the medical community knew exactly what they were doing when they crafted this portion of the proposed law.  The EMTALA definition is a little bit "loosey goosey" (mostly because it was intended as a way to be broad and make sure hospitals did not "dump" people who were uninsured in the middle of giving birth).

Because of this broad definition of emergency, and because our statute integrates that definition, most people undergoing any serious treatment in a hospital:  delivering a baby, having a heart attack, bleeding profusely, etc, will be defined by EMTALA as being "in an Emergency" and thus, ANYONE treating them will have IMMUNITY.

I think the legal inquiry will be:

"When the alleged negligence took place, could the patient have been transferred to another facility pursuant to EMTALA?" 

If yes--->  no immunity
If no ---->  Emergency under EMTALA = Immunity

Do you want just about every Obstetrician to have immunity if they make an error?

Sign-to-Emergency-Room Also, because this "definitional slight of hand" is not as obvious as saying "doctors delivering babies have immunity" will the Medical Malpractice Insurance Companies use this "gray area" to say "Well, the Legislature didn't give you outright immunity, so we can't lower the insurance rates of OBGYNs because we don't actually know if the immunity applies.  We'd have to look at it on a case by case basis."?

Bingo!  The doctors will raise an "EMTALA Immunity Defense" in EVERY case, creating a cottage industry for Insurance Defense Lawyers to bill hundreds of thousands of dollars, the Medical Malpractice Carriers will continue to charge too much money to the Doctors while enjoying the "Immunity Defense" that will probably kill most claims, and the babies who are born maimed or injured or die- well, they will have no right to a jury trial.

Please contact a member of the Committee and voice your opinion on HB 542.  Say no to IMMUNITY!

NC House Select Commitee on Tort Reform Contact Information

 

www.NicholsTrialLaw.com 1.800.906.5984

North Carolina Legislature wants to give immunity from law suits to manufactures of deadly products that kill and maim people and destroy property

The North Carolina House is set to discuss a "tort reform" Bill tomorrow H542 (they have not "officially" released it but NC Trial Law Blog has an advanced copy you can see here:  Download Big Bill Tort Reform) that would grant immunity from suit to any product "regulated" by a State or Federal Agency.

UPDATE:  4:24 pm March 30, 2011:  The Bill has finally been filed, all of 18 hours before it is to be debated.  House Bill 542

Here is the relevant language: 

No manufacturer or seller shall be held liable in any product liability action if:

1. The product alleged to have caused harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency, where the approval, license or similar determination is relevant to the event or risk allegedly causing the harm; or

2. The product was in compliance with a statute of this State or the United States, ...where the stature or agency action is relevant to the event or risk allegedly causing harm....

This is HUGE.

This means that a product regulated by ANY state or Federal agency would be immune from suit by North Carolina citizens who are hurt or maimed by the product which is eventually found defective.

Think:  bad tires, bad cars, Vioxx, bad drugs, toys containing lead or poison, etc.

Here is a "short" list of products whose manufacturers would be immune from a law suit if that product killed you or hurt you or someone you love.

Manufacturers of 328 Types of Products regulated and approved by the US Agencies will receive IMMUNITY from law suits for defective products that maim, kill and destroy property and people.

The manufactures of defective products would receive immunity from suit because the agency is "vested with the authority of this State or of the United States to issue rules, regulations, orders, or standards, concerning the design, manufacture, packaging, labeling, or advertising of a product or a service." Tort Reform for Citizens and Businesses: Section 3.1(b) amendment to Chapter 99B-1 (1a)

 

US Consumer Product Safety Commission (USCPSC) Regulated Products

 

Acetaminophen (products containing)

Acetic acid (products containing)

Adhesives -containing methyl alcohol

Adhesives -extremely flammable contact

Adhesives -floor covering

Adhesives nitrocellulose base

Aerosols (see self-pressurized products)

Ammonia, ammonia water (products containing) household, ammonium hydroxide

Antennas – CB base station and TV

Antennas -Omnidirectional CB base station

Antifreeze, ethylene glycol

Antiquing kits

Appliances, coal and wood-burning

Architectural glazing materials

Art Materials

Artist's paints

Asbestos- containing patching compounds

Asbestos -containing garments for general use

Aspirin products

Baby bouncers & walkers

Baby playing with toy

Balloons, plastic mixtures

Batteries, storage, wet-cell

Benzene paint solvents containing

Bicycles

Bicycle helmets

Biological specimens, preserved

Blasting caps

Bunk Beds

Butane in cigarette lighters

Carbolic acid (phenol) (products containing)

Carbon tetrachloride (products containing)

Carpets and rugs (large)

Carpets and rugs (small)

Caustic poisons (products containing)

Caustic poisons – potash (products containing)

Caustic poisons – soda (products containing)

Cellulose insulation

Cellulose sponges

Charcoal briquettes

Chemistry sets

Child-resistant packaging (see special packaging)

Chlorofluorocarbons, self pressurized products containing Acetonitrile (see glue remover)

Aluminized polyester film kite

Asbestos -containing artificial emberizing materials

Benzene (products containing) benzol

Bergamot oil (products containing)

Betamethasone (products containing)

Children's Products (see "Toys/Children's Products")

Cigarette lighters

Cleaning products

Clothing (see wearing apparel, sleepwear)

Coal burning appliances (see appliances)

Combustible hazardous substances

Conjugated estrogen tablets (products containing)

Consumer product

Containers consumer-owned (portable)

Controlled drugs (products containing)

Corrosive substances (products containing)

Cosmetics

Cribs -full size

Cribs -non-full size

Cribrecall2010-370

Cushions, infant

Cyanide salts (products containing)

Dietary supplements, iron-containing (products containing)

Disclaimer deceptive use of

Dive Sticks

Drain cleaners, liquid

Drugs, Oral Prescription -All Exceptions

Drugs -controlled

Drugs -iron containing

Drugs -oral prescription

Vioxx

Drugs -over the counter

Dry-cleaning solvents

Epoxy resins

Ethylene glycol (products containing)

Ethylene glycol in felt pads

Exports (noncomplying products)

Extremely flammable contents of self-pressurized containers

Extremely flammable hazardous substances

Extremely flammable solids

Eye irritants (products containing)

Fabrics

Felt-tip marking devices

Cholestyramine, anhydrous (products containing)

Clacker balls

Colestipol (products containing)

Dibucaine (products containing)

Diethylene glycol (products containing)

Diethylenetriamine (products containing)

Diglycidyl ethers (products containing)

Diphenhydramine preparations

Emberizing materials artificial, containing asbestos

Erythromycin ethylsuccinate, Suspension & granules

for suspension (products containing)

Erythromycin ethylsuccinate, tablets (products containing)

Ethanol containing mouthwash

Ethylenediamine (products containing)

Ferrous oxalate (products containing)

Fire extinguishers

Fireworks

First Aid

Flammable contents of self-pressurized containers

Flammable solids (products containing)

Flammable substances (products containing)

Fluoride (products containing)

Food

Formaldehyde (products containing)

Fuel

Furniture painted with lead containing paint

Furniture polish -liquid

Furniture polish -paste

Garage Door Openers- automatic residential

Gasoline

Glazing compounds

Heaters (see appliances)

Highly toxic substances (products containing)

Household substances

Hydrocarbons

Hydrochloric acid (products containing)

Ibuprofen (products containing)

Imported products & importers

Imports

Industrial supplies

Infant cushions

Ink cartridges dry concentrate containers

Ink-marking devices

Insulation, cellulose

Iron preparations

Irritant substances

Kerosene

Kindling & illuminating preparations

Labels

Laboratory chemicals (if educational)

Lacquers

Lawn darts

Lawnmowers power

Fertilizersdry

granular

Fuel kits with diflouro dichloromethane

Glue remover containing acetonitrile (household)

Hartshorn (products containing)

Hypochlorous acid (products containing)

Isobutane in cigarette lighters

Isosorbide dinitrate -prescription sublingual and chewable forms (products containing)

Ketoprofen (products containing)

Kites aluminized polyester film

Lead in paint (products containing)

Lighter fluid, etc. (products containing)

Lunar caustic (silver nitrate) (products containing)

Lye (products containing)

Matchbooks

Matches

Mattresses (cigarette ignition)

Mattresses (open flame ignition)

Methyl alcohol (methanol) (products containing)

Mineral oil in toys (products containing)

Mineral seal oil (products containing)

Mineral spirits (products containing)

Minoxidil (products containing)

Mirrors

Mixtures of hazardous substances

Mouthwash containing ethanol

Multiple hazard substances with

Multipurpose Lighters

Lighter

Naphtha (products containing)

Neutralizers, Permanent Wave (see Permanent Wave Neutralizers)

Nitric acid (products containing)

Nitroglycerine prescription (products containing)

Oral contraceptives

Orris root powdered (products containing)

Over-the-Counter (OTC) Drugs (see Drugs, Over the Counter)

Oxalic acid and salts (products containing)

Packages, child resistance (see child-resistant packaging)

Packages, sample

Paint (lead in) (products containing)

Paint solvents

Painting kits

Paper items

Patching compounds containing asbestos

Percussion explosives

Lidocaine (products containing)

Loperamide (products containing)

Mebendazole (products containing)

Medroxyprogesterone acetate tablets (products containing)

Methacrylic acid (products containing)

Methylprednisolone (products containing)

Methyl salicylate (products containing)

Naproxen (products containing)

Nitrites (Butyl and Volatile Alkyl)

Norethindrone acetate tablets (products containing)

Pacifiers (see Toys/Children's Products)

Pancrelipase (products containing)

Paraphenylenediamine (products containing)

Perchloroethylene in visual novelty devices

Petroleum distillates

Photographic color processing kits

Plant foods -dry granular

Poisons, caustic (products containing)

Polishing products

Potassium hydroxide

Prescription Drugs (Oral)

Pressure-generating substances

Propellant devices for model rockets

Radiator cleaners

Radioactive substances

Refrigerator doors

Refuse bins -unstable

Roof coatings

Rope, cord, string, etc.

Rugs see Carpets

Rubber vulcanizing products

Self-pressurized products

Self-pressurized products containing vinyl chloride

Sensitizers (products containing)

Signal words

Sodium hydroxide

Solder kit

Solder paste

Permanent wave neutralizers containing sodium bromate or potassium bromate

Phenol (carbolic acid)

Photodynamic sensitizer

Potash, caustic

Potassium supplements effervescent

(products containing)

Prednisone

Primary irritant

Sacrosidase (sucrase) in a solution of glycerol and water

Salt (sodium chloride)

Self-pressurized products containing chloroflorocarbons

Silver nitrate (lunar caustic)

Sleepwear, children's, sizes 0-6x & sizes 7-14

Sodium arsenite

Sodium fluoride

Sodium/potassium hydroxide

Special packaging

Spot removers single-use

Spot removing kits

Sponges, cellulose

Swimming pool slides

Tank coatings

Thread, string, twine, etc.

Turpentine (products containing)

Varnish

Video games

Vienna paste (products containing)

Vinyl chloride (products containing)

Solvents (for Paint and other surface coatings)

Stoddard solvent

Stoves, coal & wood burning

Strong sensitizers

Sulfuric acid

Toluene (toluol)

Toxic substances

Toys/Children's Products- All

Toys/Children's Products- choking hazard warnings for small parts, balloons, marbles, balls

Toys/Children's Products- balls, small

Toys/Children's Products- caps & toy guns producing, impulse-type sound

Toys/Children's Products- choking incidents

Toys/Children's Products- clacker balls

Toys/Children's Products- electrically-operated toys and children's article

Toys/Children's Products- games, self-pressurized -hollow plastic toys games

Toys/Children's Products- marbles

Toys/Children's Products- mineral oil

Toys/Children's Products- painted with lead or containing lead

Toys/Children's Products- pacifiers

Toys/Children's Products -rattles

Toys/Children's Products -sharp edges

Toys/Children's Products -sharp points

Toys/Children's Products -small parts

Choking-hazard-label

Toys/Children's Products -model rockets

Toys/Children's Products -model rockets, propellant

Toys/Children's Products -train smoke

Toys/Children's Products -use and abuse tests

Toys/Children's Products -tubes, collapsible metal (labeling)

Toys/Children's Products -unpackaged hazardous substances (labeling)

Vinyl plastic film

Walker-jumper

Wax containers

Waxes, paste for autos, furniture, floors and shoes

Wearing apparel

Writing instruments

Visual novelty devices -containing perchloroethylene

Volatile flammable materials

Water-repellent mixtures (masonry)

Wood burning appliances

Xylene (xylol)

 

Federal Drug Administration (FDA) PRODUCTS

 

Food safety

Rotten-meat-in-slices-thumb17104917

Tobacco products

Dietary supplements

Prescription and over-the-counter pharmaceutical Drugs

Vaccines

Biopharmaceuticals

Blood transfusions

Blood-transfusion-infections

Gene therapy

Cell and tissue based products

Medical devices

Electromagnetic radiation emitting devices (ERED)

cellular phones

airport baggage screening equipment

television receivers

microwave ovens

tanning booths

laser products

Veterinary products

Cosmetics

 

Sanitation requirements on interstate travel

Control of disease on products

Sperm donation for assisted reproduction

 

United States Department of Agriculture (USDA) Regulated Products

 

Meat

Poultry

Chicken-broiler-01

Egg products

   

National Highway Traffic Safety Administration (NHTSA) Regulated Products

 

Vehicle safety

Vehicle recalls

Child safety seats

Toyota_rav4_tilt_seat

Airbags

Airbags_story_landscape

Safe auto parts

Tire safety

Bad tire

Steering components

Fuel system components

Accelerator controls

Wheels that crack or break

Cracked wheel

Engine cooling fan blades that break

Windshield wiper assemblies that fail

Seats and/or seat backs that fail

Critical vehicle components that break

Wiring system problems that result in a fire

Img-vehicle-fire

Car ramps or jacks that may collapse

Air bags that deploy incorrectly

Child safety seats that contain defective safety belts

   

Child ejection
___________________________________________________________________

HIGH COSTS TO STATES

No other state in the Nation has a law like this.  The only state that is close is Michigan, which has a provision that deals only with immunity for Drug Manufacturers who receive FDA approval.  Other states have had lesser versions of this bill but none had given complete immunity.  This is an interesting history of "FDA defense" bills:  http://www.centerjd.org/archives/studies/MIDrugImmunityF.pdf

As a result of Michigan's "FDA Law", the State of Michigan lost $82 MIllion dollars in "refunds" from the manufacturer of Vioxx who was accused of falsifying safety records to the FDA.

One of the reasons Michigan passed the law in 1995 was to attempt to keep Merck and Pfizer as empoloyers in the state.  Michigan passed the law and Merck left anyhow.   also In 2007, Pfizer announced plans to completely close the Ann Arbor, Nagoya and Amboise Research facilities by the end of 2008, eliminating 2,160 jobs and idling the $300-million dollar Michigan facility.


Can North Carolina afford to give a pass on the safety of all of these items?

Vioxx cost Michigan $82 million in additional Medicaid costs.  Michigan can’t recover those damages from Merck because of the "FDA defense." If this bill is enacted, NC Medicaid and NC taxpayers will also be left holding the bag.  The Michigan Court of Appeals affirmed this "defense" on March 11, 2011.

These questions need to be asked: 

WHY DOES THE LEGISLATURE WANT TO MAKE NC THE DUMPING GROUND FOR DANGEROUS AND DEFECTIVE PRODUCTS, WITHOUT CREATING A SINGLE JOB? 

WHY WOULD THE LEGISLATURE LEGALIZE THE SALE OF DANGEROUS DRUGS?

HOW DID NC GET THIS PROPOSED LAW?

How did this "law" get to North Carolina?  It got here from ALEC, the "American Legislative Exchange Counsel" a libertarian and conservative think tank funded by big industry with their goal of protecting corporate interests from any safety regulation.

Who funds ALEC?  If you go to the link you will find a long list of manufacturers, drug makers, industrial polluters, and other "mega corporations".


WHAT CAN I DO??    IF YOU DON'T THINK THIS IS A GOOD IDEA FOR  NC, PLEASE CONTACT ANY MEMBER OF THE HOUSE SELECT COMMITEE ON TORT REFORM:

You can find them at NC House Select Committee on Tort Reform.   Or here:  http://www.ncga.state.nc.us/gascripts/Committees/Committees.asp?sAction=ViewCommittee&sActionDetails=House%20Select_127

Send them an email or a letter.  Or give them a call.  They meet tomorrow (Thursday, March 31) at 11 am.  Act now, before it is too late.

Chris Nichols

 

www.NicholsTrialLaw.com 1.800.906.5984

How some lawyer lobbyists are posing as "the people" in order to take away the right to a trial by jury for those maimed or killed by a small group of bad doctors: The birth of "astro-turf" organization "North Carolinians for Affordable Health Care"

OK folks, hold on to your hats (does anyone wear hats these days?) it is time for a trip down an Orwellian rabbit hole (to mix some metaphors) into political intrigue, lawyers, lobbyists, and a organization posing as "we, the people."  No, it's not a national political party, its a North Carolina effort to take away the Constitutional right of trial by jury if you, or someone you love, is maimed or killed by a simple, preventable, mistake.

As these things go, we lawyers know that the best way to get to the bottom of things is to "follow the money" and that's what this post is all about.

And of course, what I'm talking about is the very recent creation of a "grass roots" effort to change the the laws of medical malpractice in North Carolina.  That "grass roots" organization stealthily sprung to life on March 10, 2011, as a non-profit organization called "North Carolinians for Affordable Health Care, Inc."

What follows is the story of the "birth of an astro-turf" organization.  And if you are not familiar with that term, let me give you my definition.  We've all heard of "grass roots" organizations, right?  They start out with regular people who have a concern about something.  Those people organize and get the word out and suddenly they create a movement which gains momentum.  And when that movement gets big enough, these regular people get a "voice" on the public stage with the politicians and large corporations that can simply "buy" access to government with lobbyists.  Well, "astro-turf" is the opposite of that.  An "astro-turf" organization is something created by a corporation or a lobbyist to appear to be "of the people" when it is, in fact, just a shill by "the man"- some corporate interest that wants to pose as "the people."

As you read this rather lengthy post, you'll get to see how a small group of politically connected lawyers created an "astro-turf" organization to persuade politicians and the public to take away the rights or regular people to bring a claim against an insurance company and hospital when that hospital makes a mistake that injures, maims, or kills someone they love.

3/10/2011 Articles of incorporation for North Carolinians for Affordable Health Care (NCFAHC) is filed.

  Articles of Incorporation

It is, of course, a Section 501(c)(4) Corporation. 

The name and address of the incorporator is R. Donavon Munford, Jr.,

P. O. Box 2611, Raleigh, NC 27602-2611.

Munford Signature

 Reference: NC Secretary of State Filings

 

North Carolinians for Affordable Health Care is incorporated by a Republican former member of the NC General Assembly who is a partner in the Smith Anderson Law Firm

 

Munford Webpage
R. Donovan "Don" Munford was a Republican member of the North Carolina General Assembly representing the state's thirty-fourth House district, including constituents in Wake County from 2002. Munford is a lawyer and accountant from Raleigh, North Carolina.

Munford ran for re-election to the North Carolina House of Representatives in the 2004 General Assembly election. He defeated J.H. Ross in the Republican primary, but lost to Democrat Grier Martin in the November 2004 general election.

 He is a partner at Smith Anderson, the largest law firm in the Raleigh area. He practices in the areas of corporate and business law, estate planning and asset protection planning. Munford is also a licensed Certified Public Accountant. (Reference: Munford Wikipedia Entry)

 

Smith Anderson Law Firm is a leading Medical Malpractice Insurance Defense law firm and also a government lobbying law firm.

  Smith Anderson Med Mal page

Best Lawyers 1 for med mal

 

 

Smith Anderson Law Firm registered the website for NCFAHC.

  Whois Registration for NCFAHC


Reference: WhoIS Registration link

 

Smith Anderson Law Firm has a longstanding relationship with the North Carolina Medical Society and lobbies for them before the General Assembly.

  Davis Horne Website profile

  Horne job description website


Horne NC Medical Society Smith Anderson Website

 

The North Carolina Medical Society is lobbying for immunity from negligence for Emergency Rooms in NC.

Medical Society Web page tort reform

 

About NCMS web grab

 

3/16/2011 NCFAHC releases a commercial falsely alleging that North Carolina is experiencing "frivolous lawsuits" which increase taxes and insurance costs.

It's not fair video grab



 

FOLLOW THE MONEY

 

Are "North Carolinians" demanding immunity for negligent Emergency Rooms and physicians, or is a small group of lawyers, lobbyists, and physicians looking to walk away from their responsibility to the injured, maimed, and killed?

Can anyone explain how making Emergency Rooms immune from claims or lawsuits for "negligence" furthers the Medical Society's stated purpose to"raise the standards for their profession" and "protect the quality of patient care?"

North Carolina Senate Bill 33 (SB33) does exactly the opposite.  SB 33 changes the rules for any medical person in the Emergency Room and eliminates responsibility for "negligence".  This does not "raise the standard" for the profession, but in fact drastically lowers the standard

So how does this "protect the quality of patient care?"  Well, what happens when you say "you can no longer be held financially accountable for the consequences of sloppy work, negligent work, or breaking and ignoring the established rules in all other Emergency Rooms in the state of North Carolina?"

Does taking accountability away from Doctors, Nurses and Hospitals somehow make people more responsible?  Or does it make them act "less responsible?"


How about this?  What would happen if we eliminated all speed limits in North Carolina, and just told people not to drive "grossly fast"?  Would our roads be safer, or less safe?

Bottom line, the NC Medical Society, through their lawyers and lobbyists are "posing" as you, the people, in an effort to take away your right to hold a small group of bad doctors accountable.

And of course, where do the ACTUAL people stand on this issue?

 

Statwide poll shows opposition to immunity for ER docs

Please write your elected House member a note and tell them to oppose this Bill.


Here is how to look them up:  Who Represents Me?

(Scroll down to the bottom and look up by your Zip code)

 

 

 

 

 

 

 

 

 

www.NicholsTrialLaw.com 1.800.906.5984

Medical Malpractice "reform" proposed in NC: Do it yourself tort reform release

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

 

Do it Yourself Medical Malpractice Tort Reform Release

 

 

 

www.NicholsTrialLaw.com 1.800.906.5984

The Customer Service Model of Emotion for better trial results

This post is somewhat of a departure from my "usual" posts about liens and other important (but dry )material and it is also a huge departure from my normal practice of completely ignoring "friend spam."  What's "friend spam"?  Well, you know how you get those "chain emails" from Friends or Friends of Friends about a "Thought for the Day" or other inspirational material?  That's "friend spam".

At any rate, the 3 minute video below came through my email from a friend and I dared to click on it.  It's a little cheesy, potentially apocryphal, and it ends with an advertisement for what may even be a pseudo-religious employee training service.  And yet, I'm reposting it even though it violates many of my cardinal rules for reposting.  So why?  Why would I re-post this?

First if all, even trial hardened lawyers need to be a little mushy from time to time, right? 

But more importantly, I think this video reminds us about how to effectively try a case and prepare witnesses.  In the story, Johnny the Bagger manges to break through the mundane world of grocery shopping by connecting with his customers on an emotional level with a simple but genuine gesture.

How does this apply to jury trials?  First off, most jurors come into the courtroom with a deep set of unrealistic expectations about trials and often a mindset that is "anti-plaintiff."    After decades of insurance company propaganda, Jurors often start out by thinking they can not trust the plaintiff or their lawyer because they "want something."  The Plaintiff's lawyer has a monumental task of overcoming these perceptions while also juggling a long "to do" list of minimum evidence requirements. 

In the pressure of trial, making sure we cross off our "to do" list, we often forget that we MUST connect on some visceral level with our jurors.  Our clients can not simply clinically spout off a list of symptoms and economic losses.  It is our job to find a subject that breaks through the perceptions and connects the jurors and the plaintiff on an emotional level.

I find that when I prep even the most stoic witness, there is usually one subject or another that can get them emotionally stirred up.  I wish I could say it was always the same subject, but it never seems to be.  Often it is how the Plaintiff perceives the emotional impact of the injury on the family.  But that "a-ha" testimony never seems to come in the abstract.  It only comes in story telling.  It happens when I say, "Look, I hear you when you say this injury has impacted your family, but tell me one story, give me one example of how you figured that out."

Once I hear that story, the story that makes my client get misty eyed, I never ask about it again, until trial.  I don't tell my client I am going to ask about it.  I want my client to be raw for a moment, I want them to be emotional, I even want them to be (emotionally) messy and uncomfortable.

I want them to be real.

The video I watched this morning reminded me that being real is so important in what we do.  How do you "stay real"?  When do you let your guard down?  As lawyers, we have so many roles to fulfill in trial that it is very easy to become mechanistic.  What gets you out of that non-emotional role and shows the jury that this is not just another case for you, but a real person with real injuries?

If you can't answer the question easily, watch this video, see if it makes you feel something, and then take a moment to figure out how you can translate that feeling.

The video link

Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

Law Suit Crisis in NC? Not even close, malpractice refund check "in the mail"

As a personal injury lawyer in the state capitol, Raleigh, I hear a lot of "complaining" by physicians about "crazy lawsuits."  I always tell them (many of whom are friends) that malpractice lawsuits in North Carolina are either declining or at worst, holding steady. 

The main insurer for physicians, NC Medical Mutual, has just announced that they MADE so much money last year, they are issuing a refund to doctors.  And guess what?  This is NOT a result of tort reform.  We have had no major laws pass in our state which resulted in "savings."

In fact, based upon actuarial studies, the reality appears to be that when lobbyists for the insurance companies were screaming for tort reform, what they were doing behind the scenes was RAISING premiums for physicains to create what I would call a "manufactured problem."  The doctors' own insurance company was gouging them, and then asking them to donate money to "tort reform" causes, which of course, are insurance company lobby groups.

Looks like the physicians have finally reigned in their own insurance company by realizing that the "crisis", if there is one, is mostly in the minds (and wallets) of the insurance industry.

from the News and Observer

N.C. insurer to pay dividend
Medical Mutual will also pay off debt as drop in malpractice suits boosts profit

David Ranii, Staff Writer
The state's largest medical malpractice insurer says that fewer lawsuits filed against doctors will allow it to pay its policyholders a $3 million dividend -- its first dividend ever.
Raleigh-based Medical Mutual Insurance Co. of North Carolina said it posted a 7.4 percent increase in profit last year as the number of lawsuits filed against its policyholders fell to 298 last year. That's down from 326 in 2006.

In addition to paying the first dividend since the company was founded in 1975, Medical Mutual also plans to erase its $10 million in debt this year. And, over the next four years, it plans to refund $12 million in capital supplied by its policyholders in 2003 as part of a plan to shore up the company's finances and stabilize its premium rates.

In recent years the N.C. Academy of Trial Lawyers, whose members include the personal-injury attorneys who sue doctors for malpractice, has bashed Medical Mutual for charging rates that the lawyers' group labeled excessive.

Medical Mutual's CEO Dale Jenkins said the dividend and capital refund to shareholders demonstrates "we are a very good steward of the resources the [doctors] have provided to us. We recognize every day that it is their money."

Medical Mutual hasn't sought a rate increase from state regulators since 2005. The latest positive financial results will allow the insurer to hold rates steady again this year.

Medical Mutual's dividend will be in the form of a credit that physicians receive when they renew their policies, said Jenkins. The average credit will be about 5 percent of the annual premium for most of the 6,300 North Carolina physicians who are policyholders. Medical Mutual is a mutual insurance company that is owned by its policyholders.

"We're always glad to see a company ... able to give money back to its shareholders," said N.C. Insurance Department spokeswoman Chrissy Pearson.

Jenkins said the number of medical malpractice lawsuits has fallen nationwide. In addition, Medical Mutual has taken steps aimed at limiting lawsuits. The company has established stringent underwriting guidelines in order to avoid insuring doctors it considers high-risk, Jenkins said. "We do not take all comers," he said.

The company also sends out teams of nurses to assess doctors' practices and recommend ways to minimize risks, he said.

Profit last year totaled $26.1 million, up from $24.3 million in 2006, Medical Mutual reported. Assets increased by $44.9 million, to $416.2 million.

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Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

Contributory Negligence in NC: why comparative won't raise insurance rates

NC Lawyers' Weekly has provided a great link to an article that was run in the Winston-Salem Journal about contributory negligence laws in North Carolina. 

Contrubutory Negligence is an issue that people don't know or care about, until they face the problem themselves.  Basically, in NC, even if you are hurt by someone else's negligence, if the other person can prove you are just a little bit to blame for your injury, you are barred from any recovery.  That's right.  Someone else is 99.9% to blame, and you are barred from recovery.

Columnist Scott Sexton has written a series of excellent articles on the subject and really puts a human face on this convoluted and political issue.  I highly recommend reading these articles.

I'll also add this to the mix.  One of the problems with contributory negligence is that it is so often a bar to people seeking legal representation.  Lawyers who represent injured people know that they could spend years working on case and lose everything at trial simply because a jury felt the Plaintiff may have played some very small part in causing the accident.

Here are some the the previous articles by Sexton:

Contibutory Negligence: it's "an insurance company's dream "

"Never mind that Joshua was 7 years old and was within 3 feet of the curb, or that Logan was drunk and driving on the wrong side of the road. "By way of affirmative defense, Defendant Logan pleads the contributory negligence of the decedent Plaintiff Joshua Franklin Palomares-Beckles," wrote Rodney Guthrie, Logan's attorney. If a jury in North Carolina decides that you are even a tiny bit at fault in this sort of case, you are entitled to nothing under state law, under a concept called contributory negligence. "In general, I'd say contributory negligence is an insurance company's dream," said Walter Holton Jr., the attorney who filed the lawsuit on behalf of Beckles-Palomares. "

Wreck victim faces being victimized by outdated law

"After an automobile accident in New Hanover County involving his daughter, Ashley, a student at the University of North Carolina at Wilmington, Norris has become something of an expert on a legal concept known as "contributory negligence," an outdated and completely unfair area of insurance law used only here and in three other states. That leaves option C. "Our insurance company is also using the contributory-negligence law claim that Ashley is limited in what we can recover," Norris said.

'There is no lobby for the little people' in this state

"Just four states - North Carolina, Virginia, Alabama and Maryland - still hang on to the concept of contributory negligence, a relic from English Common Law. "

Don't believe hype that law would increase insurance rates
By Scott Sexton
JOURNAL COLUMNIST

Scott Sexton
Email Bio

On its face, insurance law - specifically a legal concept called “contributory negligence” - is something that only a serious policy nerd could love.

That is, unless (or until) you or someone you know gets hosed by that law. Then it’s not so boring.

Contributory negligence works like this: If you’re in an accident and deemed to be just 1 percent at fault, you’re not legally entitled to one red cent to cover your damages from the idiot (or his or her insurance company) who was 99 percent to blame.

Three recent columns explored some of the more outrageous abuses of this law. Possibly the worst was the insurance-company attorney who argued that a 27-year-old man killed by a hit-and-run driver in October 2003 while changing a flat tire in Orange County was partly responsible for his own death.

It’s a shameless, outdated blame-the-victim strategy. It also seems like an easy law to change.

Yet objections remain. The state, for example, could switch to a “comparative-negligence” system. If you’re 90 percent at fault, you (or your insurance company) pay 90 percent of the damages.

“Comparative negligence is a nightmare to apply. Few people agree on the percent fault they are assessed, it increases lawsuits, is a cash cow for lawyers, and raises everyone’s insurance rates,” wrote one reader who works in the insurance industry. “If you haven’t noticed, N.C. enjoys some of the lowest auto-insurance rates in the country.”

Good point. And it’s one worth exploring.

Low-rate state

North Carolina does indeed enjoy consumer-friendly auto-insurance rates - the sixth lowest in the country, according to the N.C. Department of Insurance.

That’s not, however, because of any sense of fair play by insurance companies nor because contributory negligence keeps costs down.

The credit goes to a man who next to nobody has heard of, state Insurance Commissioner Jim Long. He is basically the final word on insurance rates in North Carolina.

Every Feb. 1, the N.C. Rate Bureau - an umbrella organization representing insurance companies - files a rate request. The bureau then makes a rate recommendation. Actuaries and attorneys with the Department of Insurance negotiate any changes with the rate bureau. If there’s no agreement, then Long decides.

“It’s a pretty long and pretty dull process unless you are an actuary,” said Chrissy Pearson, a spokeswoman for the Department of Insurance.

Given that background, I figured that Long’s thoughts on the merits of contributory negligence versus comparative merits would be worth hearing.

You can read the rest of the article by going to the Winston-Salem Journal.

-Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

Raleigh Personal Injury: Lawyers Paying Bloggers to "testify"

Because I run a business that is, in part, dependent on advertising, I check out Google searches to see where my firm "places" in the Google rankings.  While looking through some of the "top hits" I found a local Raleigh firm "recommended" by a Blogger.  Sure, why not?  Except that this "Blogger" is from another state, and if you read the "small print" she makes product endorsements for CASHThat's just wrong, and deceptive.  Would you hire a firm that pays people to endorse them?

So, if you are looking for a Raleigh personal injury attorney, you have found one.  My law firm, Nichols Law Firm, never pays anyone for endorsements.  We provide personalized service to clients, and are available to meet with you during your hours, at your home if you need us too.  There is never a fee for a consultation.

Wordmark_file

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Chris Nichols

www.NicholsTrialLaw.com

www.NicholsTrialLaw.com 1.800.906.5984

A Conservative Christian Physician against Tort-Reform

To often, politics of the right and the left interfere with the stark reality of tort reform.  In the past decade or so, conservatives have used "tort-reform" as a political "wedge issue" and have spent multi-millions of dollars to turn the public, and juries, against all Plaintiffs.

The article below was written by a self-described conservative Christian physician who deeply questions the politics of taking away justice from injured people in the name of politics and for the goal of profitting "big business."

This shows me that people are seeing that fairness and responsiblity are truly non-partisan issues, and that lawsuits, in and of themselves, are not "all bad."  In fact, lawyers and lawsuits have often been all that stands between the public and harm.

Remember the Little Guy 
by Steven Hotze, M.D.

Shouldn't companies and individuals who cause you harm be responsible for the damages they inflict?
            
Pinto_2 You are probably aware of the lawsuits in the 1970s against Ford Motor Company and its Pinto automobile. Because of poor design, rear end crashes often caused the Pintos gasoline tank to explode into flames. Over 500 drivers lost their lives and thousands more were severely burned. Ford knew about this problem and that it would only cost $11 per car to repair but determined it was cheaper to pay the lawsuit settlements than recall the vehicles. Incredibly, Ford put their profits above the safety of their customers.
            
Because plaintiff attorneys were willing to file lawsuits on behalf of these injured individuals and families on a contingency basis and fight the multi-billion dollar Ford Motor Company, Ford paid hundreds of millions of dollars in judgments. Ford was also criminally charged with negligent homicide for having knowingly sold unsafe cars.
            
These lawsuits against Ford were based on product liability law which holds businesses responsible for any injuries caused by their products. The Ford lawsuits and resulting settlements sent a strong signal to the automobile industry. Safer cars have been the result.
Over the past decade, the Republicans in the Texas Legislature have passed a series of bills which have limited the liability of large corporations when they are found by a jury to have caused injury to their employees or their customers. This has me concerned and it should have you concerned as well.
            
Who wouldnt want limited liability for their actions? This is especially true of some large corporations which place their financial interests above the well being of their employees and customers. 
            
Under current
Texas law, it is hard to imagine that Ford Motor Company would have been required to pay out such a large amount of money in judgments as it did at that time.
            

Texas_cap Tort reform has dramatically limited the liability of businesses and individuals in Texas. The Texas Legislature has set limits on the amount that a business or individual can be required to pay in judgment to an injured party. No one likes the idea of frivolous lawsuits, but most individuals seem to agree that a remedy should be paid to an injured party commensurate with the damage.
            
Who does this current law benefit? It benefits the large corporations and the well financed who have deep pockets and the wherewithal to hire a bevy of defense attorneys.  Their financial risk for shoddy workmanship and unsafe products has been dramatically reduced.
            
What about the small business owner or the individual with modest means?  How will they afford the assistance of a lawyer to help them be fairly compensated for their losses?
            
As a physician and conservative, I have a healthy distrust for big government and big business. The conservative position requires accountability for actions. It appears to me that the pendulum for tort reform has swung too far in favor of big business.

Its time to remember the little guy.

by Steven Hotze, M.D.

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Chris Nichols

www.NicholsTrialLaw.com 

www.NicholsTrialLaw.com 1.800.906.5984