House lawmakers are set to take up legislation soon that would reform North Carolina’s medical malpractice law to limit patients’ ability to collect damages and expand protections for physicians from liability lawsuits.

The bill has brought on a battle of the titans — physician-advocacy groups versus trial-lawyer associations, the latter of which reap monetary rewards from winning big-ticket malpractice cases on behalf of patients.

Senate Bill 33, Medical Liability Reforms, passed the Senate March 2 by a comfortable 36-13 margin, but it could face a tougher sell in the House, and a potential veto from Gov. Bev Perdue.

Cap on damages

One of the measure’s most controversial provisions would cap the amount of noneconomic damages that plaintiffs are eligible to receive at $500,000. Noneconomic damages are defined as intangible loses, such as physical pain and emotional distress. Economic damages are more easily measured — lost wages, medical bills, and other defined expenses.

North Carolina law currently leaves the amount of noneconomic-damage awards up to juries. Some Democrats argue that changing the standard would result in inequities.

“A child who might lose two arms and two legs is worth $500,000 if it didn’t occur in an emergency room, but a surgeon who loses two arms and two legs is worth tens of millions of dollars,” said Senate Minority Leader Martin Nesbitt, D-Buncombe.

Other lawmakers claim that skilled trial lawyers are able to play on the sympathies of juries to win inordinately high awards. That’s why the cap is needed, they say.

“Our citizens suffer in a lottery-like system that lets trial lawyers win big while doctors flee to states where they can practice without fear of unfair lawsuits,” said Senate leader Phil Berger, R-Rockingham, in a statement.

Robert Seligson, executive vice president of the North Carolina Medical Society, said that capping noneconomic damages would create stability in the health care system and convince more doctors to migrate to the state.

“It’s impossible to reimburse some people for noneconomic portions of the award, because everybody is different. Every case is different,” Seligson said. “It allows no predictability to be put into the system.”

Constitutional doubt

Some legal experts question whether the cap could withstand a challenge under the state’s constitution. In a letter to Forsyth County Republican Sen. Pete Brunstetter Feb. 8, former N.C. Supreme Court Chief Justice I. Beverly Lake Jr., a Republican, argued the limits were unconstitutional.

The cap would run afoul of the constitution’s guarantee that plaintiffs have the right to a trial by jury in property cases, Lake wrote. He added that a cap is “unnecessary” because trial judges have discretion to reduce excessive jury awards.

“The trial judge, unlike the legislature, has actually heard the evidence and can make a sound judgment about whether the verdict is excessive,” Lake wrote. “In doing so, the judge operates within the Constitution; instead of imposing his own view of the proper amount of the verdict, he must instead give the plaintiff the choice of a reduced verdict or a new trial.”

But in a second letter to Brunstetter, another former chief justice, Democrat Burley Mitchell, said the cap was constitutional.

“We are aware of no binding legal authority that should give the General Assembly any pause in enacting a statutory cap on recovery of noneconomic damages in medical malpractice actions,” Mitchell wrote.

Anticipating a legal challenge, sponsors added a provision to the bill clarifying that if a court strikes down the cap, other parts of the legislation relating to the cap also would be repealed.

Negligence standard

Another divisive part of the measure would set the standard for malpractice suits arising from emergency room visits at “gross negligence,” meaning a trial lawyer would have to prove that a physician had reckless disregard for the welfare of his or her patient.

Foes of S.B. 33 claim the gross-negligence standard would lead to complete immunity for ER doctors and create a separate standard for them compared to other physicians.

“To sustain a claim in a case under this new standard, the provider would’ve either had to be drunk, on drugs, or engaged in some other outrageous behavior,” said Sen. Josh Stein, D-Wake.

Stein offered an amendment on the Senate floor that would have lowered the standard to “simple negligence,” but it failed in a mostly party-line vote.

Supporters say the negligence standard creates a system where physicians aren’t continually second-guessed for making split second decisions to the best of their knowledge.

“I don’t think we’re making a separate standard for an ER physician. I think we’re just trying to give him the benefit of the doubt,” said Sen. Eric Mansfield, a freshman Democrat from Cumberland County.

House debate

S.B. 33 was assigned to the House Judiciary Subcommittee A March 7. The committee meets each Wednesday.

House leaders have created a Select Committee on Tort Reform to examine liability issues. It hasn’t met yet.

At a press conference March 8, House Speaker Thom Tillis, R-Mecklenburg, said he wasn’t elected to the legislature to make trial attorneys happy.

“I’m here to produce fair outcomes for people who have been injured,” he said.

David N. Bass is an associate editor of Carolina Journal.