Medical lawsuit limits adjusted

House bill now goes to Senate

Staff writerApril 21, 2011 

— The state House of Representatives passed a scaled-back medical malpractice reform bill Wednesday that dropped the most controversial provisions in earlier versions.

Gone are the sections that would have given near-immunity from liability to emergency-room doctors and to manufacturers of medicine approved by the Food and Drug Administration. The bill does set a higher standard of proof to find emergency-room doctors liable.

In a charge led by several Republican House members who are lawyers, legislators also refused to limit the amount of money that juries can award for death, disfigurement, permanent injury and loss of a body part. The bill sets a $500,000 cap on other non-economic damages, which it now defines as pain, suffering, emotional distress and other less-tangible injuries.

The House vote, 91 to 27, sends the bill back to the Senate, where it originated. Senators had approved the emergency-room protection. An earlier House version added the protection for drug makers. That provision is still alive but in a broader tort reform bill that is still in a House committee.

The bill's author, Lincoln County Republican Rep. Jonathan Rhyne Jr., in introducing this latest version of the legislation, had told House members that it was "very much a mainstream medical malpractice reform bill" that was needed to keep costs down. The goals of reform are widely supported by business, he said, as well as by the Congressional Budget Office, the bipartisan federal deficit commission and even by President Barack Obama.

Plaintiffs' attorneys, who say the bill is an improvement but still troublesome, disagree that "reform" is needed. They point to the high hurdle that anyone has to clear to even file a medical malpractice lawsuit in North Carolina and the low rate of those suits that are ultimately successful.

Most of the debate Wednesday was about the cap on noneconomic damages. Rhyne fought to keep the $500,000 limit intact, calling it the heart of the bill. He said dispassionate legislators, not juries swayed by emotion, should decide how much money can be awarded. Otherwise, he said, it makes the legal system unpredictable because different juries will award different amounts in similar cases.

Injured people could still collect an unlimited amount of money in actual damages, he pointed out.

But Rep. Leo Daughtry of Johnston County expressed the same reservation that several of his colleagues had. "I'm not only a lawyer but a Republican lawyer," he said. "... Sometimes you get caught in the middle. For us to second-guess what a jury does is difficult for me to support."

When one legislator suggested that skilled attorneys might win sky-high damages for someone who had suffered something like a broken nose, Daughtry was quick to respond.

"The idea that a jury would give $500,000 for a pinkie is not believable," he said. "This debate shouldn't be about statistics. How do you tell somebody who lost two legs that this is aggressive tort reform and you just got caught up in it?"

The provision protecting emergency-room doctors from liability in earlier versions said the doctor had to have committed "gross negligence" to have been found to have deviated from the standard of care. Opponents said that meant the doctor had to be drunk or on drugs.

This version elevates the standard required to find an emergency-room physician deviated from the standard of care. Plaintiffs must prove doctors violated that standard by "clear and convincing evidence," rather than the usual standard of "preponderance of evidence" in most civil cases.

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

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