Doctors could get more protection from lawsuits

Staff writerFebruary 27, 2011 

  • The chamber, the state's leading business lobby, has outlined its goals for this session. They include:

    Tax policy: Ensure that changes or new laws help employers create jobs.

    Regulatory reform: Make the environmental rule-making process more efficient and effective.

    Workers' compensation: Impose a limit on the duration of benefits for temporary total disability.

    Legal reform: Make the justice system "rational, fair and predictable."

    Infrastructure: Work on long-range transportation issues.

    Education and work force: Focus on ways to increase graduation rates and address the shortage of skilled workers.

    The medical malpractice bill

    The bill is co-sponsored by Republican Sens. Tom Apodaca of Hendersonville, Harry Brown of Jacksonville and Bob Rucho of Matthews. Its provisions:

    Emergency medical providers would have to be found by the greater weight of evidence to have deviated from the standard of care through gross negligence, wanton conduct or intentional wrongdoing.

    When the plaintiff seeks more than $75,000, separate trials would be held on liability and on damages if one party requests it.

    A limit would be established for noneconomic damages.

    Periodic payments could be established rather than a lump sum to pay off damages for future medical care.

— A bill that would make it more difficult to sue emergency-room doctors if they make mistakes and would limit the amount of money that could be collected in medical malpractice lawsuits is moving quickly through the General Assembly.

The debate over whether medical malpractice law needs to be reformed is not new, but this time it is falling on fresh ears: the new majority of Republicans in the state House and Senate.

The same players are lined up on both sides: Doctors and hospitals want reform, while patient advocates and trial attorneys say it's not necessary because it's already hard to win a medical malpractice lawsuit in North Carolina.

The proposed law is part of a larger package that GOP lawmakers are pushing this session in sync with the N.C. Chamber of Commerce, which has made changes in liability laws one of its priorities for this legislative session. The chamber also has workers' compensation on its agenda, along with a variety of regulatory and tax initiatives.

On Thursday, a House committee on tort reform conducted its first meeting with a briefing by both sides of the medical malpractice bill. The co-chairman, Rep. Johnathan Rhyne, a Lincolnton Republican, said the committee would discuss the issues in the coming weeks. He issued a statement afterward saying the committee aims to balance access to the legal system with efforts to make the state more "business friendly."

A Senate judiciary committee has conducted several hearings on the bill and is scheduled to take it up again Tuesday.

The bill's supporters have the same arguments they've used for many years: The cost of insurance is going up because doctors order extra tests to protect themselves; jury verdicts are outrageously high.

The conservative Americans for Prosperity cites national data:

Three in four physicians say they practice defensive medicine.

The Congressional Budget Office estimates tort reform would reduce medical liability insurance by 10 percent.

Restrictive laws on malpractice suits in Texas have lowered insurance costs there dramatically.

"There are some problems with medical liability litigation that have not been addressed and have not been resolved...," said Steve Keene, general counsel to the N.C. Medical Society, the state's physicians group. "The costs of defensive medicine are very significant. Everybody has to pay for that."

The lawyers' response

Trial lawyers have returned to the fray with a campaign to introduce legislators to injured patients. They have launched TV spots across the state to drum up public support.

The lawyers, under the banner of N.C. Advocates for Justice, have come armed with their own numbers, focusing on this state: The New England Journal of Medicine recently found a significant number of preventable deaths and injuries each year in North Carolina hospitals.

The number of medical malpractice suits filed here over the past decade has declined; the annual average is 465 lawsuits. The number of doctors has increased and outpaces the growth of the state as a whole. Insurance companies have made record profits, and insurance rates for doctors are actually down.

North Carolina already has a significant hurdle for filing medical malpractice lawsuits: Plaintiffs must first find an expert in the same field to testify that the defendant doctor or hospital deviated from the standards of practice. Judges are permitted to rein in excessive jury awards. The median amount in cases the plaintiffs won at trial is about $320,000.

Patient ordeals

Laurie Sanders of Charlotte, executive director of the N.C. Coalition for Patient Safety, sued a hospital and two doctors over her son's death. Her group contends the current law offers enough protections to the medical community.

"I didn't think about it until six years ago," she said. "I would have said doctors do the best they can. We're all human. We all make mistakes. But it's not mistakes - it's following a standard of care to do what they're supposed to do."

Sanders' 6-year-old son died after developing respiratory problems and going through a series of encounters with medical personnel. She says her family spent $225,000 just to get the case to the mediation stage before trial.

"We went from medical nightmare to legal nightmare," she said.

She can't disclose the terms of her settlement, which was reached in 2007, with Presbyterian Hospital, two doctors and other caretakers.

Dr. John Faulkner, a Raleigh primary care physician, says he spent about twice as much as Sanders in his lawsuit against Franklin Regional Medical Center and the doctors who were involved in his wife's routine surgery. A cauterizing tool ignited oxygen that was being pumped into her nose, severely disfiguring her face, neck and chest with second- and third-degree burns. His case was settled for a confidential amount on the day the trial was to begin.

Faulkner, who is also involved in the N.C. Coalition for Patient Safety, says his wife, Joan, has improved through reconstructive surgeries but still suffers from chronic pain, depression and insomnia. The two most significant aspects of the proposed legislation - the cap on damages and the emergency-room immunity - are galling to Faulkner.

Details of the bill

Current law allows unlimited compensatory damages and punitive damages limited to three times the amount of compensatory damages or $250,000, whichever is greater. This bill makes a distinction between economic damages, such as lost wages and medical care, and "non-economic damages," such as pain and suffering, physical and mental impairment and disfigurement. It would limit recovery of non-economic compensatory damages to $500,000 for each defendant. The bill originally capped it at $250,000 per plaintiff.

The cap would hurt nonwage earners: children, older people and homemakers, for instance, because they cannot claim damages for lost wages. That would include people such as Faulkner's wife, who was a stay-at-home mother.

Immunity in the ER

The bill would also give immunity from lawsuits to emergency-room physicians unless their actions constitute "gross negligence, wanton conduct, or intentional wrongdoing."

"I think it insults the profession," Faulkner said. "It lowers the standard of care."

That section of the bill was written to acknowledge that emergency rooms are extraordinary places, where doctors are expected to provide sometimes fast-paced care for patients they don't know. Opponents note the current law allows those doctors to be evaluated by their peers, taking into consideration that environment. Doctors in nonemergency situations would still be liable for substandard care.

Samuel G. Thompson, a Raleigh lawyer who defends doctors, on Thursday presented the other side of the coin to the House Select Committee on Tort Reform. He said some specialists will avoid emergency-room work, and that will deprive people of health care.

"Doctors are terrified of getting sued," he said.

craig.jarvis@newsobserver.com or 919-829-4576

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