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.


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.

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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...

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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...

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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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