In NC, medical malpractice victims are denied justice

A report by The New York Times on lapses in heart surgery at UNC Children’s Hospital would appear to put the hospital at serious risk of malpractice lawsuits. After all, the report included not just statistics and anecdotes, but secretly recorded comments in which the hospital’s own cardiologists said they would worry about sending their own children there for surgery.

But while the report gives the hospital many reasons for concern, a flurry of malpractice suits is probably not one of them. That’s because in 2011 the General Assembly capped pain and suffering awards in malpractice cases at $500,000 when the person who died as a result of malpractice is not an income earner. That would include babies and children.

Before the law’s passage, some objected that it would be unconstitutional. Its opponents said plaintiffs are entitled to a jury trial, and the jury’s assessment of what is a just award can’t be limited by an arbitrary dollar figure imposed by the legislature. Among those arguing against the cap were two former members of the state Supreme Court, former Chief Justice I. Beverly Lake Jr. and former Justice Edward Brady.

The Republican-led General Assembly, determined to make North Carolina more “business friendly,” especially for the insurance industry, dismissed those legal concerns. North Carolina joined nearly half the states in the nation in adopting a limit on non-economic damages. A breadwinner can get more than the cap based on lost lifetime earnings, but when the malpractice victim has no income, any jury award above $500,000 would be reduced by the judge to meet the cap.

The injustice of the limit is especially obvious in cases involving children. They have no income, but what is the value of a life lost or a life limited by medical negligence or error? The cap likewise allows no measure of the heartache felt by parents of a child lost or seriously harmed by a doctor’s negligence. Finally, it removes the threat of heavy malpractice penalties when treating non-earners, such as the children who died following complex heart surgeries when UNC Children’s was not well-suited to perform surgeries at that level.

Meanwhile, there is little evidence that the problems the law supposedly would cure even existed. “Frivolous” lawsuits were not an issue nor was there a backlog of cases. In years prior to the law’s passage, malpractice cases averaged 477 annually. The law has cut that number by about 40 percent, but the reduction isn’t a decline in baseless claims. Rather it reflects how many malpractice lawyers have quit the field and how those remaining are reluctant to take cases involving non-earners since the cap makes the cost of going to trial prohibitive.

Burton Craige, a former malpractice attorney who has written about the law’s effects, said, “The cap is a huge barrier to meritorious lawsuits for people who cannot show substantial economic damages.”

Limiting jury awards in malpractice cases would likely be ruled unconstitutional should a case make it to the North Carolina Supreme Court. In April, the Oklahoma Supreme Court found that Oklahoma’s legislative cap on damages for pain and suffering — passed the same year as North Carolina’s cap — is unconstitutional.

Craige said a test case in North Carolina has not arisen because only a small fraction of malpractice cases go to trial and those that get to trial are often settled before a verdict or before an appeal. He said the cap gives insurers “tremendous leverage” to get a plaintiff to settle for less than the full amount of the damages.

Unfortunately, as North Carolina waits for its Constitution to be honored, those killed or injured by medical malpractice are being denied justice, and physicians and hospitals that make serious errors are not being held to account.

Barnett: nbarnett@newsobserver.com, 919-829-4512