The NCMS has been working diligently to pursue medical liability reform this session. Several bills have been filed that address serious problems in the current medical liability system. Chief among them is Senate Bill 33 – Medical Liability Reform, sponsored by Senators Tom Apodaca (R-Buncombe), Harry Brown, (R-Onslow), and Bob Rucho (R-Mecklenburg). This bill has received priority attention from Senate leaders since this year’s session began, including the Senate Judiciary 1 Committee, chaired by Sen. Pete Brunstetter (R-Forsyth).  The NCMS is devoting significant resources to making sure this bill is successful in addressing the excessive costs and unreasonable liability exposure generated by the current medical liability system. This work will continue until the problems are addressed.

The Senate Judiciary 1 Committee held its third meeting on Senate Bill 33 on Tuesday. Senate Bill 33 addresses medical lawsuit reform. The committee process has included one meeting to present the bill in detail, a second meeting to allow for all interested parties to make short presentations to the committee, followed by Tuesday’s meeting where committee members discussed the bill and presented amendments. No votes were taken, but voting on amendments is expected at the next meeting on Thursday. The following is a short summary of the amendments that were presented Tuesday:

Senator Tom Apodaca (R-Buncombe) presented one amendment:

• Raise the cap on noneconomic damages from $250,000 per plaintiff, to $500,000 per defendant, per occurrence.

Senator Harry Brown (R-Onslow) presented one amendment:

• Remove language from the emergency care provision requiring that negligence be proved “by clear and convincing” evidence, and replacing it with language that negligence be proved “by the greater weight of the evidence”, a lesser standard.

Senator Pete Brunstetter (R-Forsyth) presented one amendment:

• Increase the threshold that would invoke the periodic payment provision from $75,000 in future economic damages to $200,000 in future economic damages.

Senator Dan Clodfelter (D-Mecklenburg) presented seven amendments:

• [Note: Before a malpractice case can proceed in NC, Rule 9(j) currently requires medical malpractice plaintiffs to get a qualified physician to review the “medical care” and be willing to testify that there has been a deviation from the standard of care.] The proposed amendment would require any doctor serving as a plaintiff’s 9(j) expert to review all of the available, relevant medical records beforehand. Further repeals the 10 special interrogatories that defendants may use to learn about the Rule 9(j) expert’s qualifications, and instead allows the defendant to obtain an affidavit from the Rule 9(j) expert that the requirements of the statute have been satisfied.
• Remove some negligence cases (i.e., those arising out of the furnishing or failure to furnish patient care services other than professional services) from the Rule 9(j) requirement.
• Establish a 10-year statute of repose for claims arising from birth-related injuries, whereas current law allows malpractice actions on behalf of a minor to be brought anytime before the minor’s 19th birthday or during the applicable statutes of limitation and repose, whichever is longer.
• Remove a provision limiting the appeal bond required in a medical malpractice action to the lesser of the amount of the judgment or the limits of the applicable insurance (the bond limit would be $1,000,000 for those with no insurance), and replace it with a provision allowing the court to set “proper and reasonable” appeal bonds on a case-by-case basis according to the amount of the judgment, the limits of the applicable insurance policies, and the aggregate net worth of the judgment debtor.
• Modify the rules pertaining to expert witnesses in medical malpractice cases. The proposed amendment would prohibit most depositions of experts, and require instead that the parties exchange documents detailing each expert’s opinions and the basis of those opinions, the expert’s compensation arrangement, and a listing of the expert’s qualifications (including recent publications) and previous expert testimony.
• Change the regulation of professional malpractice insurance rates, to limit the use of certain data in setting rates, and to limit the circumstances under which rates could be increased. The proposed amendment would also require the insurance Commissioner to analyze data reports from professional liability insurers and send reports to the General Assembly.
• Replace the current periodic payments section with another approach that limits the availability of periodic payments and would allow the court to end the periodic payment arrangement under certain circumstances and require lump sum payment of damages.

Senator Tom Goolsby (R-New Hanover) presented one amendment:

• Add “loss of future household services” to the types of damages subject to the proposed periodic payment provisions of the bill. Also add “loss of future household services” to the proposed verdict form that would identify the amounts awarded by the jury for the various categories of damages relevant to medical malpractice cases.

Senator Martin Nesbitt (D-Buncombe) presented one amendment:

• Eliminate the provision capping noneconomic damages at $250,000 per plaintiff.

Senator Josh Stein (D-Wake) presented two amendments:

• Add language to the standard of health care statute to require juries to consider circumstances under which the health care in question was provided. Delete the proposed “gross negligence” standard for emergency care.
• Create an exception to the propose cap on noneconomic damages for disfigurement, brain damage, paralysis, physical impairment or death. Also exempt punitive damages from the proposed cap.