week of 11/5/03
 
 
 
  Malpractice reform stalls in North Carolina
By Sarah Kucharski

To cap or not to cap? That is the fundamental question lawmakers are debating when it comes to medical malpractice awards.

As malpractice insurance premiums rise, medical professionals consider leaving their jobs and costs trickle down to patients, malpractice reform at this juncture is a political battle generally split along party lines.

State senators have exchanged volleys for months. Republican leaders have pushed for legislation that would place a $250,000 cap on non-economic damages while Democrats support a medical review system that would allow an outside party to determine whether a malpractice case should go to court.

Sen. Robert Pittenger (R-Mecklenburg) moved to amend a respiratory care bill (H1257) to include a $250,000 cap in July, but the amendment (S9) was voted down 26-17. Democrats voted to kill the amendment, Republicans voted for it.

A second bill (S802), sponsored by Sen. R.C. Soles Jr., the Democratic Caucus chair, was introduced, this time forgoing a cap in favor of efforts to reform the medical system itself. The bill did not receive endorsement from the medical community, with organizations such as the N.C. Access to Quality Healthcare Coalition calling the proposition potentially helpful but not a solution.

“SB 802 is built on a series of experimental measures, and there is no evidence that it will address the underlying problems facing our doctors, hospitals, nursing homes and other healthcare providers,” a coalition media statement read.

The bill calls for several reform measures, including forcing losers in a malpractice suit to pay the winner’s attorney fees and for presenting juries with a damages proposal from both sides before choosing what amount to award. When the bill came to vote, it passed by the same margin the cap amendment had failed, a margin once again determined by party affiliation.

“Both of the votes that we have had over there unfortunately have shaken down over party lines,” said Sen. Robert C. Carpenter (RFranklin).

The bill has now been sent to the House, which is out of session, meaning that unless a special session is called no action can be taken until the legislature reconvenes next year.

Carpenter said Republicans are hopeful an amendment will be introduced that will cap malpractice awards.

But while a cap might sound good politically and look good on paper, it is an unproven concept.

A report by insurance rating service Weiss Ratings said that only two of the 19 states with caps in place had seen flat or declining malpractice premiums from 1991 to 2002. For this reason, cap opponents have said that payout limitations only penalize malpractice victims rather than effectively curbing the medical insurance market.

In North Carolina, a cap also could be viewed as unnecessary as juries in malpractice cases have consistently favored health care providers over patients, according to a report by former U.S. Department of Justice Civil Rights Division trial attorney Burton Craige.

“Malpractice plaintiffs in North Carolina win at trial less than 20 percent of the time,” Craige’s report states, citing the N.C. Administrative Office of Courts.