Tort reform gets a twist in its final days

Staff writerJune 15, 2011 

— RALEIGH -- The Senate on Tuesday tentatively approved a bill that at one time proposed unprecedented protections for manufacturers against product liability lawsuits, and limited the amount of money plaintiffs could collect in damages. Now it has nothing to do with either of those subjects.

And a bill dealing with medical malpractice lawsuits that was approved last week and presented to the governor Tuesday turns out to have a provision in it that hardly anyone noticed until now.

Welcome to the final days of the legislative session.

Major changes to the Tort Reform for Citizens and Business bill - one of the key pieces of legislation on the Republican agenda this session - came in a Senate judiciary committee meeting Monday. The sweeping product liability section of the bill, HB542, had previously been reined in to protect only drugs approved by the Federal Drug Administration.

The Senate committee on Monday dropped that entire section of the bill. Lawmakers are considering putting it in a bill that would require that the issue be studied. On Tuesday, the full Senate voted 47-1 for the bill but held off on final approval. If approved, it must then return to the House.

But there's a curious new provision in HB542, which was added to deal with a surprise in SB33, the medical malpractice bill. That piece of legislation had two main points of controversy: protection from lawsuits for emergency room doctors, and a cap on noneconomic damages. Those disagreements sent the bill into a conference committee, which came up with a compromise that both chambers signed off on Thursday.

Rep. Jonathan Rhyne, the bill's primary author, said on the House floor Thursday that the compromise required the House to give up what it wanted: no limit to the amount of money that juries could award in noneconomic damages in the most severe cases; instead, those would be capped at $500,000 unless a patient could prove gross negligence - an extremely high bar. And, Rhyne said, the compromise required the Senate to give up what it wanted: virtually insurmountable protection for emergency room doctors, unless gross negligence could be proven.

The House position was that plaintiffs should only have to prove ordinary negligence, but by a slightly higher standard than under current law. Rhyne repeatedly said on the House floor that the compromise provided for that.

But that's not what SB33 does, it turns out. The Republican-controlled Senate conference committee reworded that section to broaden the protection beyond emergency room doctors to any medical emergency in a hospital. That was never mentioned in the House or Senate, and opponents of the bill never had a copy of it until after it was approved. A lobbyist for trial lawyers spotted the new provision this week.

Rhyne could not be reached for comment Tuesday.

Now a new provision in HB542 says that if SB33 becomes law, pregnant women in hospitals would not have to prove gross negligence. That provision came out of concerns the governor's office had, Sen. Peter Brunstetter said. But trial lawyers are still not happy with the gross negligence standard as it applies to other patients.

Chrissy Pearson, Gov. Bev Perdue's spokeswoman, said Tuesday that the governor hopes further discussions can produce a true compromise. or 919-829-4576

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