Senate Bill 33 went into effect on October 1, 2011 and significantly altered the procedural rules and substantive law as they relate to health care providers and patients under North Carolina’s medical malpractice law. (See http://www.ncga.state.nc.us/Sessions/2011/Bills/Senate/PDF/S33v7.pdf.) Specifically, the recently enacted law heightens the plaintiff’s filing and evidentiary requirements throughout the various stages of litigation, creates a presumption in favor of bifurcating the issues of liability and damages at trial, and places a cap on noneconomic damages a court may award a plaintiff.
The reform has been a hot topic in North Carolina tort law and the source of ongoing controversy. As such, the Spring 2012 issue of The North Carolina State Bar Journal features two articles by authors with polarizing perspectives on the nature and impact of the new laws. (See http://www.ncbar.com/journal/archive/journal_17,1.pdf.) The feature, titled “Sweeping Changes to Medical Malpractice Law – Point/Counterpoint,” spotlights North Carolina’s tort reform through the eyes of two medical-malpractice defense attorneys and the legal affairs counsel for the North Carolina Advocates for Justice, a nonpartisan association that seeks to protect the rights of individuals.
(See http://www.ncaj.com/page/about/?submenuheader=0.) The purpose of this post is to examine the authors’ clashing views on the provisions related to the cap on noneconomic damages.
The reform legislation places a $500,000 cap or limit on the amount a court may award a plaintiff for noneconomic damages. An award of noneconomic damages would compensate a plaintiff for “pain, suffering, emotional distress, loss of consortium, inconvenience, and any other non-pecuniary compensatory damages.” (See N.C.G.S. § 90-21.19(c)(2) at http://www.ncga.state.nc.us/Sessions/2011/Bills/Senate/PDF/S33v7.pdf.) The cap applies regardless of the number of plaintiffs or defendants and to all medical malpractice actions filed on or after October 1, 2011. The sole exception to the law is that the cap does not apply if the trier of fact finds the defendant’s reckless, grossly negligent, fraudulent, intentional, or malicious conduct proximately caused the plaintiff “disfigurement, loss of use of part of the body, permanent injury or death.” (See N.C.G.S. § 90-21.19(b)(1-2) at http://www.ncga.state.nc.us/Sessions/2011/Bills/Senate/PDF/S33v7.pdf.)
The jury-verdict form must indicate the specific amount of the plaintiff’s noneconomic damages if the evidence presented at trial supports that amount. The court, attorneys, and witnesses may not disclose to the jury the existence of the cap. (See N.C.G.S. §§ 90-21.19(d) and 90-21.19B at http://www.ncga.state.nc.us/Sessions/2011/Bills/Senate/PDF/S33v7.pdf.)
- Point: Katherine Flynn Henry and Phillip Jackson, North Carolina attorneys who focus their practice on the defense of health care providers in medical malpractice litigation, co-wrote the first of the feature articles, “North Carolina’s Tort Reform: An Overview.” (See pages 12 – 16 of http://www.ncbar.com/journal/archive/journal_17,1.pdf.) The authors presented the law and then, in a pro-reform discussion on the impact of the legislation on medical malpractice litigation, argue the following points on the $500,000 limitation on noneconomic damages. First, the authors contend the cap could diminish the amount of cases filed for “certain types of medical malpractice cases.” Second, the authors assert the cap “makes it more likely that a defendant with a strong defense case will take that case to trial as the limitation on noneconomic damages removes a significant uncertainty about what a damages verdict would be in the unlikely event that the case was tried and lost.” Finally, the authors maintain that the legislation is constitutional, finding “[m]ost state appellate courts that have addressed similar reform legislation have upheld the constitutionality of the legislation.” The authors supported this final contention by citing 37 No. 4 J. Health Care Fin. 46 (2011).
- Counterpoint: Burton Craige, legal affairs counsel for the North Carolina Advocates for Justice, wrote the second feature article, “The Brave New World of Malpractice Litigation.” (See pages 16 – 18 of http://www.ncbar.com/journal/archive/journal_17,1.pdf.) The author attacks the $500,000 cap on two main fronts. First, the author argues the exception is too narrow. “[C]atastrophically injured patients” may seek to recover full compensation only if their health care provider either “knowingly and needlessly” placed them at risk of serious harm or was incapacitated by drugs or alcohol at the time of the incident in question. Second, the author casts doubt on the constitutionality of the cap by quoting former Chief Justice I. Beverly Lake Jr. in a letter Chief Justice Lake released after Senate Bill 33 was introduced. Citing the North Carolina Constitution and two decisions handed down by the Supreme Court of North Carolina, the letter asserts that noneconomic damages are actual, compensatory damages, thus “a form of ‘property’ protected by the constitutional right to trial by jury.” In closing, the letter maintains the right to have a jury determine the amount of compensatory damages “cannot be eliminated or restricted by the General Assembly.”
The authors’ points and counterpoints will either prove or disprove themselves over time, but the discourse and debates are sure to continue.