News: CJ Exclusives

Time for Healthy Debate in North Carolina

Report offers responses to state's malpractice crisis

Proposed legislation in the General Assembly that would cap “pain and suffering” awards and make other judicial changes to help address North Carolina’s medical malpractice crisis is a good first step, but lawmakers should also consider reforms such as a “loser pays” rule and judicial oversight of expert testimony, according to a new report from a Raleigh-based think tank.

Dr. Roy Cordato, resident scholar and vice president for research at the John Locke Foundation, wrote the just-released Spotlight briefing paper, entitled “A Healthy Debate: Ideas for Addressing the Medical Malpractice Crisis.” As state lawmakers begin to debate legislation proposed by Sen. Robert Pittenger (R-Mecklenburg), Cordato’s analysis found that many of the provisions in the Pittenger bill would likely alleviate rising costs and abuse in medical malpractice litigation.

“The bill is a good starting point for discussion,” said Cordato. “Beyond its scope, however, lie some of the root causes of the crisis, and these also need careful attention.”

For example, Cordato pointed out an “inherent bias” in the tort system in favor of reaching a settlement even if the physician would otherwise not be found negligent by a jury. Because the cost of successfully defending a malpractice claim can approach $100,000, it often makes sense for defendants to settle for a lesser amount out of court, passing along the cost to insurers and, in turn, to all policyholders in future rate increases. Plaintiff’s attorneys, then, have an incentive to file litigation even when the chances of winning are relatively low.

“A reform that would address this problem is to adopt a loser-pays rule for litigation expenses,” Cordato said. “This would go a long way toward discouraging frivolous suits and protecting doctors from false accusations.”

Another problem is the quality of expert testimony, according to Cordato. Many juries are swayed by “junk science and quack medicine” due to their own lack of medical or scientific backgrounds and little judicial oversight of “experts” called to testify. A solution would be to empower judges to exclude more scientifically doubtful testimony and to implement juror selection reforms to keep citizens with medical expertise from being systematically excluded from jury service, he said.

One provision in the Pittenger bill that Cordato questioned is a cap on lawyers’ compensation. “The fees that a lawyer receives should be a matter of private agreement between lawyers and client,” he wrote.

There is no question that North Carolina faces a medical malpractice crisis, Cordato wrote, pointing to a 50 percent increase in insurance premiums for specialists from 2001 to 2002, a 400 percent increase in premiums for N.C. hospitals over three years, a sharp decline in malpractice insurers that are “truly active” in North Carolina, and soaring average jury awards.

“A sound legal system that fairly redresses grievances is a right of both potential plaintiffs and defendants,” he concluded. “Ultimately it will lead to better health care at lower costs.”

The new Spotlight on medical malpractice issues can be read online at the John Locke Foundation’s main website.