News & Observer – Raleigh, NC

The typical well-trained, conscientious doctor goes to great lengths not to jeopardize a patient. And there is understandable resentment in doctors’ ranks when poor outcomes are taken as a sign of negligence. Not to put too fine a point on it, but nobody lives forever, and for that doctors can’t be blamed.

Yet experience forces us to conclude that mistakes do occur in medicine, and that some are so egregious as to carry legal culpability. To which many a plaintiff’s lawyer has said, “Oh happy day!”

The notion that lawyers angling for contingency fees are stoking the malpractice fires helps arouse calls to make it harder for injured patients to sue and to recover damages in court. In that regard, the tribe of trial lawyers sometimes can be its own worst enemy, given its financial motive to push for big settlements and jury awards.

Yet physicians, hospitals and insurance companies have their own countervailing motives that also come down to cold hard dollars. The more difficult it is for plaintiffs to recover damages, the less pressure there is on the malpractice insurance industry and the less doctors need to be charged for insurance premiums. Lower insurance outlays mean more money to the bottom line – one might say, just what the doctor ordered.

Tweaks on the table

As it has regularly in recent years, North Carolina again confronts the question of whether the malpractice system should be tweaked in doctors’ favor. Trial lawyers have organized to oppose a legislative push from the business community and the N.C. Medical Society.

Yet here’s the question that must be asked: How would the changes disrupt what stands as a delicate legal balance meant to protect not only the conflicting interests of doctors and lawyers but also the rights of people who may well have been wronged by the health care system?

The sponsors of a bill now being vetted on Jones Street want damages awarded for “non-economic” factors such as pain and suffering, disability and disfigurement to be held to $500,000 per plaintiff.

That’s a hefty sum. Yet even with no limits in effect, and also taking into account compensation for any lost wages and the cost of further medical care, the median jury award in malpractice trials, as The N&O reported Sunday, is about $320,000. Considering how difficult it is to get a complaint to that point – a medical expert must agree that care was below par before a claim can proceed – this is not a system obviously out of control.

Benefits for whom?

The bill also would make it harder to sue emergency room doctors and take some other steps intended to hold down malpractice costs. That goal is a fine one, of course, and cutting back on doctors’ perceived need to practice “defensive medicine” to shield themselves from lawsuits should help make health care more affordable.

What hasn’t been shown, however, is that the changes would yield such public benefits that they would justify restricting what an injured patient could recover after a trial in which a doctor accused of negligence has every chance to show that he or she complied with reasonable standards of care.

Malpractice insurance rates are on the decline in North Carolina, as are the number of malpractice suits, and the number of doctors is increasing. Judges can overrule jury awards if they’re deemed excessive.

Let the national debate over tort reform proceed. But in North Carolina, the case for making it easier for doctors, hospitals and insurance companies to duck proper accountability for negligent conduct, in those unusual cases when it does occur, has not and perhaps cannot be made.