Cap on jury awards may not meet constitutional muster.

Charlotte Observer – Charlotte, NC

State Senate leaders seem hell-bent on rushing through a dramatic change in North Carolina law on medical malpractice.

In their haste they are bringing to the Senate floor as early as today a bill that may well be unconstitutional. Worse yet, they are insisting on an unrealistic standard for winning damages in emergency room malpractice cases. In effect, some lawyers say, it will force victims to prove their doctors were drunk or stoned before they can collect on non-economic damages.

This is not the right approach for bringing medical costs under control and expanding access to health care, as sponsors of the bill contend. Rather, it will limit the ability of the citizens of North Carolina to seek damages for pain and suffering, including mistakes and botched care in emergency rooms that have killed many and maimed others.

The New England Journal of Medicine reported in November that an analysis of N.C. hospital admissions showed patients have a one in five chance of harm from medical care they get in this state’s hospitals. Trial lawyers say the data show more people die from medical malpractice in this state than from car accidents, breast and prostate cancer and manslaughter and murder put together.

Sponsors of the Senate bill – Republican Sens. Bob Rucho of Mecklenburg, Tom Apodaca of Henderson and Harry Brown of Onslow – are right when they say the cost of medical care in this state is too high and legislators should find ways to hold costs down. That effort should include ways to diminish the practice of so-called defensive medicine – ordering tests and other procedures in hopes of avoiding costly lawsuits if doctors don’t try everything. Yet data show fewer malpractice cases are being filed in this state and malpractice insurance rates are down even as the number of N.C. doctors has grown.

So limiting the ability of victims of medical malpractice to collect more than $500,000 for death, loss of limbs or bodily functions or other consequences for medical mistakes or bad care is not the right approach. Former N.C. Supreme Court Chief Justice Beverly Lake, a Republican who also served in the Senate and in the executive branch, points out that the high court has long protected the right of the public to seek compensatory damages for mental and physical pain. The N.C. Constitution protects this right to compensatory damages as a matter of property, he says. If the Senate wishes to alter the Constitution, it should do so through a constitutional amendment.

While the Senate bill has marginally improved, with a $500,000 cap rather than a $250,000 cap as introduced, the bill has other problems. It requires those harmed by emergency room care to prove “gross negligence,” which the N.C. Supreme Court has defined as “wanton conduct done with conscious or reckless disregard” – “done of wicked purpose … needlessly, manifesting a reckless indifference to the rights of others.” That standard would, some say, provide near total immunity for emergency room malpractice.

We believe a bill the Senate considered in 2003 had the outlines of a more responsible approach. It aimed to discourage medical malpractice cases from going to trial, gave insurers more flexibility in paying awards and created two state funds to make malpractice insurance more available. It wasn’t a perfect bill, but it had the right goals in mind. If senators want a measure that protects the public’s rights to pursue compensatory damages but also helps medical personnel avoid costly lawsuits and get more affordable insurance, they’ll take another look.