Tort reform will limit medical malpractice recovery in North Carolina

North Carolina Senate Bill 33 entitled "Medical Liability Reforms" will apply to all malpractice lawsuits against doctors, nursing homes, hospitals and other health care providers in North Car­olina filed after October 1, 2011. The new law limits a patient's ability to recover civil damages for medical negligence that occurs in this state. In North Carolina, it has been estimated that more than 4,000 patients die each year as a result of preventable medical errors. This number is greater than the number of deaths from motor vehicle accidents, breast and prostate cancer, and homicides combined in this state in any given year. While significant funds and public attention is directed to the prevention of motor vehicle accidents and cures for cancer, the North Carolina legislature has seen fit to make it more difficult for victims of medical negligence to recover for their injuries.

For example, if a patient is injured as a result of the actions of an emergency room physician or health care provider, the patient must prove that the health care provider's departure from the standard of care amounted to gross negligence, wanton conduct or intentional wrongdoing. In the past, it was only necessary to prove that the physician or health care provider failed to meet the standard of care of others in the same profession with similar training or experience in the same or similar communities. This is the standard definition of negligence. Under the legislative reforms, negligence by an emergency care provider is no longer enough for a patient to recover.

An injured party's recovery for "non-economic damages" has been capped at $250,000. Non-economic damages include pain, suffering, emotional distress, loss of a loved one's support and companionship, physical impairment, disfigurement or other permanent disability. Even if a jury seeks to award damages in excess of the $250,000 limit, the judge is required to reduce any award to the statutory limit.

Another significant reform is that evidence of damages cannot be submitted to the jury until the jury has made a determination on the issue of liability. Thus, under the new law, all medical malpractice cases are divided into two sections. The jury hears only the evidence relating to liability in the first trial and all damages evidence is reserved until the second trial.

Clearly, these changes in the law will make it more difficult for patients who have been injured by the negligence of a physician, nursing home, hospital or other health care provider to recover for their injuries. In the years leading up to the passage of Senate Bill 33, the number of medical malpractice cases filed in North Carolina has actually declined while the population of North Carolina and the number of physicians practicing in the State continues to increase. Of the low number of medical negligence cases that were filed, 96 percent were settled or dismissed before or during trial. Of the 4 percent that actually went to a verdict, the vast majority of those verdicts were in favor of the Defendant. In the five-year period from 2006 to 2010, only 57 malpractice cases resulted in a Plaintiff's verdict of which the median jury award was $302,600. There is certainly a real question as to why the legislature needs to limit patients' rights to recover for medical errors when the number and size of medical negligence verdicts against physicians is decreasing.

If you suffer a death or serious, permanent injury from medical negligence, you should have your case evaluated by an experienced personal injury attorney to discuss your options for recovery.