Until 2011, the North Carolina General Assembly had not passed significant medical liability reform legislation since 1995, when it enacted the pre-litigation expert review requirement and set standards for experts in medical malpractice cases. Senate Bill 33 ended a long dry spell. The bill represents a significant improvement in the fairness of North Carolina’s medical liability system. As such, it drew fierce opposition from the plaintiffs’ bar and from those public officials who have traditionally opposed reform and are still in office. Unrelenting support from legislative leaders in the Senate and House, combined with aggressive lobbying by a strong coalition of medical and health interests ultimately lead to passage of a landmark liability reform bill.
For more information and the latest news on Medical Liability Reform, visit the NCMS blog.
When it reached Governor Perdue’s desk, she vetoed it. The measure passed the House with only 62 votes. The State constitution requires 72 votes to override a veto if all members are voting.
Medical liability reform, once again, appeared to be dead on arrival. Governor Perdue asked for changes to the cap on noneconomic damages (discussed below) that would have exempted many cases from the cap altogether.
The NCMS physician leadership chose to fight for meaningful reform rather than water down the cap. The NC General Assembly later agreed, overriding the Governor's veto and passing medical liability reform into law.
NC State Senator Tom Apodaca summarizes the need for medical liability reform in our state in February 2011 on an episode of NCN Legislative Week in Review on UNC-TV
Senate Bill 33 has eight important provisions:
Ensures that the right to appeal is preserved in cases of large jury awards by requiring the court to set appeal bonds based on consideration of relevant factors. Currently, an appeal must be accompanied by an “undertaking” or bond for the full amount of the judgment. Otherwise, the plaintiff is free to begin executing on the judgment, even while the appeal is pending. In cases where the judgment is beyond insurance policy limits, a bond can impossible to obtain because there would be no assets to back it up. Senate Bill 33 gives judges the latitude necessary to issue a stay even when the bond does not cover the entire judgment. Factors the court must consider include, but are not limited to: the amount of the judgment; the policy limits of applicable insurance; and the aggregate net worth of the health provider. This change is effective October 1, 2011, and applies to actions commenced on or after that date.
Addresses the classic jury error of confusing bad outcomes with medical negligence by requiring juries to first determine if the physician was negligent before hearing evidence of the severity of harm. Plaintiffs can currently elicit sympathetic responses from jurors by introducing evidence of the severity of harm, even before the jury has concluded that the physician breached the standard of care. Senate Bill 33 allows trials to be separated into two phases, with the same jury hearing both phases. During the first phase, the only issue to be addressed is whether the medical care was below the applicable standard. Only if the jury first determines that the care was below the applicable standard can evidence of the severity of harm be introduced. This bifurcated approach is available for cases where the plaintiff is claiming more than $150,000 in damages, unless the non-moving party shows good cause for a single trial. This change is effective October 1, 2011, and applies to actions commenced on or after that date.
Cuts down on frivolous lawsuits by requiring the pre-litigation reviewing expert to review all of the reasonably available medical records. This change is effective October 1, 2011, and applies to actions commenced on or after that date.
Strengthens expert witness requirements on administrative and non-clinical issues. Requires that experts testifying on administrative or non-clinical issues in medical malpractice cases must have substantive knowledge about the applicable standards in hospitals or facilities of the same type as the defendant facilities. This change is effective October 1, 2011, and applies to actions commenced on or after that date.
Broadens scope of statutory protections applicable to malpractice cases by adding adult care homes to the definition of “health care provider.” Also provides that “medical malpractice” includes civil actions that allege a breach of administrative or corporate duties by hospitals, nursing homes, or adult care homes (such as credentialing, monitoring, and supervision of staff) if the claims arise out of the same facts or circumstances as a claim against a health professional. These changes are effective October 1, 2011 and apply to causes of action arising on or after that date.
Controls unnecessary medical testing by requiring that any liability claim arising from treatment of an emergency medical condition be proved by “clear and convincing evidence.” This change is effective October 1, 2011 and applies to causes of action arising on or after that date.
Tackles excessive jury awards by capping noneconomic damages. Also requires juries to specify what amount, if any, is awarded for noneconomic damages, and requires the court to instruct the jury on the definition of noneconomic damages (i.e., damages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, and any other nonpecuniary compensatory damage; does not include punitive damages). This change is effective October 1, 2011, and applies to actions commenced on or after that date.
Restores fairness to claims of medical negligence made on behalf of minors by requiring such claims to be brought in a timelier manner. This change is effective October 1, 2011 and applies to causes of action arising on or after that date.
Who Voted for the Override?
House Override Vote (7/25/11): Total Votes: 116 | Ayes: 74 | Noes: 42 | Not: 2 | Exc. Absent: 2
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