Thursday, March 24, 2011

Med Mal torts: $$ and the Constitution

I'd like to highlight something from a broader story on North Carolina medical malpractice reform, which I wrote this week for The Indy.

The GOP's medical malpractice tort reform bill in North Carolina has primarily been pitched as a way to save money on health care.

Some say it will also help the state recruit doctors, ideally to rural areas with shortages. But I've looked at several studies on these issues, and the likelihood that all kinds of doctors will relocate to Hendersonville, NC, because the General Assembly beefed up its tort laws is questionable.

Those studies do agree, though, that reforms in Senate Bill 33 save money. It may be less than a percentage point of total health care costs, and the savings may never trickle down to patients, but it does save money.

The problem is, it's really the award caps that save money. According to a Harvard synthesis of several medical malpractice studies, only the caps are effective. From that study:
Caps on damages reduce average awards and have modest effects on premium growth and physician supply. Other reforms have little impact.
The problem is these caps are constitutionally vulnerable.

In fact, SB 33 specifically contemplates the cap section of the bill — and only that section — being declared unconstitutional. Georgia's Supreme Court found a very similar cap unconstitutional last year in a unanimous decision that you can download here: Click on S09A1432. ATLANTA OCULOPLASTIC SURGERY, P.C., d/b/a OCULUS v. NESTLEHUTT et al.

Georgia Justices decided that "the very existence of the caps, in any amount, is violative of the right to trial by jury."

Now, as Senate President Pro Tem Phil Berger noted Tuesday, North Carolina justices will be looking at North Carolina's constitution when/if they decide this, not Georgia's.

But the N.C. Constitution's right to trial by jury (Article 1, Sect. 25) is not much different from Georgia's (Article 1, Sect. 1, paragraph XI).

Georgia's says the right "shall remain inviolate" and North Carolina's says it "shall remain sacred and inviolable." And, of course, the right to trial by jury in civil and criminal matters is in the U.S. Constitution as part of the Bill of Rights.

So unless North Carolina's Supreme Court reads constitutions a whole lot differently than Georgia's, the caps would be declared unconstitutional. Two retired N.C. Supreme Court Justices have predicted this, though a third has said he believes the caps are constitutional.

But here's my point: The bill's meant to save money. It includes caps and several other reforms, including a new "gross negligence" standard and other changes that will make it harder to sue doctors. Studies show that cap reforms save money, and that other tort reforms probably don't.

So if this bill passes and the cap is declared unconstitutional you end up with new tort laws that don't fulfill the stated purpose of saving money, but do make it harder for people seriously injured by malpractice to sue.

That is, if they pass at all. Republicans hold majorities in the House and Senate, but Gov. Bev Perdue has been giving her veto stamp a work out so far this session.

16 comments:

Mike said...

"... the savings may never trickle down to patients, but it does save money."

Just to clarify: The *costs* of caps will trickle down to some patients, given that they wouldn't be able to collect for any legitimate damages incurred above the cap that a jury would have awarded.

Similarly, if the caps do in any degree expand access to health care (or reduce restrictions to health care, as by not allowing premiums to grow as much and thus increasing affordability), then some patients could see additional benefits besides cost savings.

Disclaimer: I believe I have family members who have been involved on both sides of lawsuits involving medical issues.

Jassie said...

Unfortunately there are many cases of medical malpractice that lurks behind and it definitely cost a sum of money..

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belliefaul said...

All medical issues should be settled properly by the handling courts and governments should focus on this.


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Angeline said...

Medical malpractice is a crucial issue. It may lead to trial if both parties do not agree with mediation. It is essential for the doctor/hospital to settle the case outside to ensure that their credibility will not be affected by the lawsuit.

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Billy said...

Medical malpractice is one of the alarming concerns today. Many doctors and hospital commit this kind of case. Although I understand that doctors are not perfect, they should at least get informed consent to prevent possible lawsuits.

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Brent McLaulen said...

I agree with the previous comments. It is indeed very alarming that many hospitals and doctors today are incurring medical malpractice charges. This is in line with the different treatments being done to the patients. Sometimes, doctors forget to provide and ask for informed consent. This can be used against the hospital.

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andiegrants said...

Some of the medical malpractice cases are being resolved through mediation. This is the easiest way to get away with possible lawsuits and loss of dignity and reliability as a practitioner.

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Anita said...

Settlement can indeed do a little magic when it comes to medical malpractice lawsuits. This is the easiest way for the hospital to remain intact and stay away from tarnishing their names to the public.

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Angeline said...

Medical malpractice is one of the lawsuits that can be resolved through mediation. A mediation attorney will be the one to do the tricks. It is sometimes unacceptable, but it does really exist.

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Sharon said...

It is indeed a reality that medical malpractice lawsuits end up through mediation. Many hospitals have great mediation lawyers who do the magic. This can happen in case of drug-related or procedure-induced injuries.

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Terry Wilson said...

It is indeed a reality that medical malpractice. Unfortunately there are many cases of medical malpractice that lurks behind and it definitely tons of money.

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Mary White said...

Personal injury may be a result of an accident or medical malpractice. It is very essential to have your lawyer with you to help you decide and take necessary actions. A personal injury lawyer can settle a case whenever possible. However, it still up to you on whether you are going to fight it or go on with the mediation. Your decision still matters.
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Emilee T. Leeper said...

Medical malpractice is a serious issue that must be addressed by the government. It is very alarming that even the government can't do anything to put an end to this misdeeds.

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Stew said...

The problem with medical malpractice is the ability of these giant pharma companies to shift the law to their favors.
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daryl said...

This is a good development about GOP's medical malpractice tort reform bill in North Carolina has primarily been pitched as a way to save money on health care. Atleast now there is something that we can be looking forward too. Find more facts about health at hip recall law website.

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