A bill approved by the state Senate Wednesday to place a cap on non-economic damages in medical malpractice cases has several problems the House should rethink.

One of them, as we have pointed out, is that a monetary cap on non-economic damages such as pain and suffering is likely unconstitutional. An N.C. Supreme Court opinion in 1904 declared that a state law cannot restrict the recovery of actual or compensatory damages because, under our state Constitution, the right to recover such damages is a property right.

And in 2004 the court restated that point. As former Chief Justice Beverly Lake has written, N.C. citizens "have a 'sacred and inviolable' right to have a jury determine" the size of compensatory damages - a constitutional right that the legislature cannot restrict. Thus the legislature is moving forward on a bill that will likely be held unconstitutional. If that happens, as legal precedent suggests, it will leave this state yet again without any significant tort reforms. It will have been a waste of time and effort.

But it's also increasingly evident that lawmakers are inclined to adopt a cap on damages. The Senate improved the bill marginally by raising the proposed cap from $250,000 to $500,000 on non-economic damages such as pain and suffering, paralysis, loss of limbs, brain damage or death. Another amendment directs the courts system to change the cap every three years according to changes in the consumer price index.

The bill does not seek to put a lid on economic damages such as doctor bills, costs of care or lost wages.

But where the bill goes entirely overboard is a provision that provides almost total immunity for malpractice in the emergency room. It imposes a new standard of proof requiring damaged patients to prove "gross negligence, wanton conduct or intentional wrongdoing." The bill's sponsors describe this as nothing more than "limited protection," but in reality it is a radical difference.

As then-Chief Justice Lake wrote in a 2001 case, the legal term gross negligence means "wanton conduct done with conscious or reckless disregard" for the rights and safety of others. It includes acts done of "wicked purpose," and it connotes "intentional wrongdoing or deliberate misconduct affecting the safety of others."

In other words, an emergency room doctor would have to be inebriated or motivated to intentionally harm or kill a patient before a victim of bad ER care could even hope to win non-economic damages. This is a standard so extreme that it would violate the simple principle that everyone has access to the courts to correct a wrong. Trial lawyers say the bill's wording excludes even economic damages unless a patient can prove gross negligence. This effective immunity from economic and non-economic damages for malpractices that ruin people's lives forever is excessive, ill-advised and mean-spirited. The House should remove it from the bill.