NC’s harsh malpractice law leaves victims helpless against medical errors | Opinion

For Hillel Abrams, the trouble started with a teenage rumble when he got hit in the face, an injury that led to permanent damage to his nose and his ability to breathe.

A half-century later, he’s still fighting, but this time it’s a fight to sue a North Carolina doctor who promised to fix the damage, but Abrams thinks only made it worse.

In seeking to bring his case, Abrams, 70, of Raleigh, has run into aspects of North Carolina malpractice law that protect doctors and insurers, but leave victims of medical error or neglect unable to have their day in court.

“People are being denied the ability to get in front of a jury and have their peers determine if plaintiffs were provided unacceptable care or not,” Abrams said.

Abrams is looking for others who have been stymied in their attempt to bring a malpractice lawsuit. He thinks a group could challenge two parts of state law that impede would-be plaintiffs.

The first obstacle to suing for malpractice is a requirement to obtain an affidavit from a medical expert that the claim has merit. In grievous injury cases, attorneys will pay the cost of obtaining that expert testimony. But in borderline cases, the person claiming injury may have to cover the cost of expert witnesses, who charge as much as $1,000 per hour.

Abrams, a retired software developer, has found an attorney after many refused to take his case, but he is fronting the cost of getting an expert to certify the validity of his claim. “Do I have the money? Yes,” he said. “Is it going to affect my retirement? No doubt about it.”

Abrams’ attorney, Erika Bales of Hillsborough, said requiring an expert’s certification before a case can go forward is unfair. “Many people who’ve been hurt don’t have thousands of dollars to have someone tell them if it’s a viable case,” she said.

The second obstacle is a state cap on how much a plaintiff may be awarded for noneconomic damages beyond medical bills and lost earnings. Noneconomic damages would include pain and suffering and emotional distress. There is no cap on economic losses.

Some trial attorneys say the requirement of a medical expert’s affirmation keeps weak or frivolous malpractice cases out of the court system. But they agree that the cap on noneconomic damages – an inflation-adjusted amount now set at $650,730 – makes it hard for people with little or no lost earnings to find an attorney. Except for narrow exceptions, the cap limits the potential value of a case when the injured party has little or no earned income, such as a child, a homemaker or a retiree.

In seeking to sue, Abrams has come up against an old argument in North Carolina. Trial attorneys defeated an attempt to cap noneconomic damages in 2004, but after legislative control shifted to Republicans following the 2010 election, the non-economic damages cap was added in 2011.

More than half the states have similar caps on malpractice awards. Courts in several states have found the cap to be unconstitutional.

Such a ruling could come in North Carolina. In a Buncombe County case awaiting a ruling in the Court of Appeals, plaintiffs say the cap on noneconomic damages violates the constitutional right to a trial by jury.

The case involves a woman who lost her unborn baby and suffered injuries. Her doctor allowed her pregnancy to extend well beyond her due date and then failed to send her to a hospital when she was experiencing severe pain.

A jury awarded the woman $7.5 million to compensate for noneconomic damages, but the trial judge applied the cap law, reducing the award by more than 90%.

A favorable ruling in the case may help Abrams and others proceed with their malpractice claims, but for now, gaining accountability for medical mistreatment means overcoming tall legal obstacles.

“The payments are too limited and the upfront costs are too onerous,” Abrams said.

He hopes he can find others who’ve had trouble bringing a malpractice case to join him in calling for changes in the law. He said he wants “to get people who can go ahead and tell their story and use their story to make the kind of change that should happen.”