Opinion: Daily Journal

The Latest on Medical Malpractice Reform

Now that the North Carolina House has passed its version of a 2003-05 state budget, and the Senate is likely to wait for the April revenue numbers before solidifying behind its own version, expect for the legislative focus in Raleigh to shift back, albeit briefly, to the raging issue of medical malpractice reform.

Actually, some will wonder if the term “raging” is accurate. Yes, the doctors and the lawyers and the hospitals and the insurers are all over the issue. They are hiring lobbyists. They are buying ads and circulating fact sheets. They are burying lawmakers with statistics, arguments, and counter-arguments. But what about ordinary voters? Is this issue resonating with them?

I haven’t seen much evidence one way or the other in North Carolina, but I did find a recent nationwide poll interesting. Conducted by Public Opinion Strategies (but unfortunately not linked on the company’s web site), the survey found, not surprisingly, that issues such as the economy, jobs, and national security ranked higher on most voters’ priority list than malpractice reform. Still, 34 percent said they considered the medical malpractice issue to be a “significant concern” in their state. Furthermore, in the 12 states that the American Medical Association considers to have a malpractice “crisis” — one being North Carolina — the percentage of those saying it was a “significant concern” rose to 43 percent. The propensity to view the issue this way bore no relationship to party, by the way, as similar percentages of Democrats, Republicans, and unaffiliated respondents agreed.

As far as reforms are concerned, the Public Opinion Strategies poll appears to show support for capping damage awards. About two-thirds of respondents agreed with the idea of capping punitive damages. More relevant to the North Carolina debate, 53 percent favored the $250,000 cap on pain and suffering awards that has become part of the proposed legislation in the General Assembly.

The scuttlebutt around the building the past few weeks has been that some kind of malpractice reform will pass, but perhaps the cap on awards might be raised or otherwise modified. My colleague Roy Cordato has already weighed in on several aspects of this issue, so I’ll just note that capping pain and suffering awards does not have any bearing on economic damages or recompensement of medical bills. Coming up with a dollar figure for actual damages — lost wages, etc. — is challenging but hardly impossible. Pain and suffering, however, is inherently an arbitrary judgment, so I think I’d rather have the law set some admittedly arbitrary but not too onerous bounds on it rather than leaving it to blow in the juridical wind. As for punitive damages, I am deeply suspicious of using juries to send messages or regulate industries. If punitives should exist at all, they should never be paid to litigants and litigators. They should revert to the General Fund or be earmarked for some unassailable purpose.

How about routing all punitive damage awards to fund indigent defense, starting with half a million bucks for the Center for Death Penalty Litigation that some lawmakers unsuccessfully tried to have excised from the state budget in the House? Any takers?

Hood is president of the John Locke Foundation and publisher of Carolina Journal.