LEGAL TRENDS, ODDS & ENDS:  
Insights into Changes in North Carolina Law             March 2011
 
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Marching to Madness...

Current legislation to limit your family's legal rights in the event of medical error is unnecessary, unwise and unfair.
 
     While the rest of North Carolina focuses this month on the perennial passions of basketball and brackets, there is a wholly different form of "March Madness" going on in our State's capitol.

     A few preliminary words...  While writing these LEGAL TRENDS newsletters during the last twenty months, I've tried to avoid partisan political stands. Even though most everyone who knows me knows I am a proud "raging moderate" Southern Democrat, I wanted -- and still want -- this forum to be a source of news and information about changing developments in the law.  It's not meant to be a political blog.

     But when a significant change in the law is being considered that severely limits your family's rights in the event you become disabled, maimed or killed by medical error -- and essentially eliminates those rights if it happens to you in the ER -- I feel compelled to tell you about it.  I feel especially compelled after the New England Journal of Medicine issued a report last fall involving North Carolina hospitals, and estimated that an nearly 25 of every 100 hospital admissions in this state result in some degree of harm due to medical error.  (See NEJM 11/25/2010.)

     You can read N.C. Senate Bill 33 for yourself, but here are the two major changes currently proposed:

     -- If you are harmed by any mistake or error in the emergency room or ambulance, your family can have NO recovery whatsoever unless you can prove the harm was done intentionally (or that it was grossly negligent).

     -- Regardless of what a local jury determines to be fair compensation for you due to the loss of a limb, or lifelong scarring due to third-degree burns, or permanent paralysis, the legislators in Raleigh would limit your recovery to $250,000 for these so-called "non-economic damages."  (A new proposal has the cap at $500,000.) 

      As I discussed recently on WCNC-TV's Flashpoint news show, these changes are unnecessary, unwise and unfair

     After reading these facts, if you still think that the malpractice "crisis"  warrants such draconian changes, I'll respect your right to that opinion.  But there should be no mistake as to the harm it may potentially do to you and those you love.  There are much, much better solutions for cutting medical costs, and protecting physicians from insurance rates that may be too high.

     Please don't hesitate to give me your feedback, good or bad.  And, as always, thanks for reading.

 

      All the best,
Signature                                                
    Mike Daisley
    WELLS DAISLEY RABON, P.A. 
    1616 Cleveland Avenue
    Charlotte, North Carolina 28203   
    [email protected]                             
     phone:  (704) 375-1800  Wells Daisley Rabon, PA Logo
  
 
 

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UnnecessaryUnnecessary:  There is no "lawsuit crisis" causing doctors to leave the state.
    During our discussion on Flashpoint, former Charlotte mayor Pat McCrory claimed that this bill limiting patient rights would "save lives." (Click for the clip...the tort reform discussion starts around 3:45 on the recording.)  Without it, patients would find it harder and harder to be seen by a doctor. 
     The facts say otherwise:  Over the last decade, the growth rate in the number of physicians in NorthFlashpoint - MCD Close Carolina is higher than that of the general population.  Since 1998, the number of physicians has grown by nearly a third, from roughly 15,000 to almost 20,000.  Put another way, the number of licensed physicians per capita in The Old North State is HIGHER than it was ten years ago.
     Meanwhile, the number of medical negligence lawsuits has gone DOWN as has the the size of the average jury award in those lawsuits. 
     Besides there are already numerous safeguards in the system.  Before a lawsuit against a doctor or a hospital can even be filed, a patient's attorney must spend NC Declining Malpractice Filingsthousands of dollars on a qualified expert to review carefully the medical record (also costly to obtain).  After that review, the qualified expert (the rules are carefully written to exclude "hired guns" that make most of their money testifying) must render a written sworn opinion that the usual standard of care was not followed.  No other profession gets such protection.
UnwiseUnwise:  This proposal does nothing to make hospital and emergency care safer, nor does it lower malpractice premiums.

     In 1999, the Institute of Medicine issued its momentous report indicating that in America "medical errors cause up to 98,000 deaths and more than 1 million injuries each year."  As referenced in the introduction above, the prestigious New England Journal of Medicine conducted a followup study here in North Carolina and released the results last fall that concluded: "...harms remain common, with little evidence of widespread improvement."   

     One might hope that our Legislators would be more concerned about helping hospitals implement higher standards (as the NEJM report recommends) to "translate safety interventions into routine practice," and less intent on stripping patients' legal rights.  (Such standards are being tried in other areas to great effect.)  This bill does nothing to encourage more safety; indeed, because it calls for lower accountability, it may well lead to lower practices of care. 

     Moreover, the effectiveness of arbitrary caps on damages is anything but certain. Comparison of Liab Premiums As evidenced by the track record in other states, and according to data derived from the Medical Liability Monitor, the average malpractice premium in North Carolina was 15 percent lower in 2010 than the average malpractice premium in states with caps.

     Targeted insurance reform, such as requiring carriers to justify premium charges and rate hikes before a regulatory commission, have been shown to more beneficial in keeping rates fair and reasonable.  After all, it shouldn't take a brain surgeon (pun intended) to figure out that the best way to implement insurance reform is to reform insurance, not the civil justice system.

UnfairUnfair:  By definition, this law would solve the "problem" by punishing the most severely injured.

     Just for the sake of argument, let's say for a minute that high malpractice insurance rates are a huge problem crippling the state's healthcare system.  This legislation attempts to "solve" this "problem" on the backs of the most harmed and most innocent.  Quite literally, this bill has the effect of saying to citizens: "If you are the victim of a medical mistake, and are harmed just a little, then this law doesn't affect you.  BUT, if you are harmed severely and permanently, suffer excruciating constant pain and have other losses such that a local jury after hearing all the facts might decide your harms are worth more than $250,000 (or $500,000), then YOU are the party penalized.  The smart legislators in Raleigh are far more intelligent than the easily gullible jurors of your community.  So sorry and good luck."

      And it's unfair on another level as well.  Right now, the societal costs of the harm is borne by the party responsible for causing the harm.  Under this "reform" the costs are shifted to the innocent victim to pay, and in the (most likely) event that victim or his/her family can't pay for those costs, it will be shifted to the taxpayer. 

Other opinions to consider: 
     Another "un" to call this bill is unconstitutional.  Former North Carolina Chief Justice Beverly Lake has called for the defeat of Senate Bill 33 because it violates the State Constitution's taking of property rights.
     A venerable physician from Pembroke (and recipient of the Long Leaf Pine Award), Dr. Martin Brooks, went on record last month lobbying against the bill predicting it "will reduce the quality of care provided in emergency departments and cause more injuries and deaths to patients who come there for treatment."
     The Fayetteville Observer (hardly a bastion of leftist ideology) opined that "a cookie-cutter approach hardly seems the fair way to assess the damages on every case" and that "The bill gives emergency room medical staff a free pass...(I)f they accidentally amputate the wrong leg, but weren't drunk, the victim has no cause for a claim.  That is flat-out unconscionable."
     Likewise, the Wilmington Star just last weekend noted that "our state has an excellent track record of sensible malpractice decisions.  Only once in New Hanover County has a jury awarded damages in a malpractice case -- that is how rare 'runaway juries' are in North Carolina."
Community Activities: 
Luanne and me - less memory
Luanne my "handler" & Me
Lobbying of another kind...A big shout-out to my "Orange Crush" colleagues who "joined the movement"  for MS in D.C. this month. 
     I had the great fortune to be asked to participate earlier this month in the National Multiple Sclerosis Society's Public Policy Conference in our nation's capitol.  Following a full day's briefing on three particular issues of major concern to neurologists and to persons living with MS, representatives from across the country fanned out the next day over Capitol Hill walking (sometimes riding in a wheelchair or scooter) from meeting to meeting with Senators, House members and their health policy staff members. 
     A special shout-out goes to Luanne Kirkland of the Mid-Atlantic Chapter staff who deserves combat pay for being my designated "handler" for the day.  (In Washington, I'm told you are nothing unless you have a "handler.")  Also to Abby Carter Emanuelson, who is a "policy wonk" extraordinaire when it comes to all things health care related.
     A good day for a good cause.
For more information
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Wells Daisley Rabon, PA
1616 Cleveland Avenue
Charlotte, North Carolina 28203
 
(704) 375-1800               fax: (704) 347-0680
 

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