Unlike the neighboring state of Virginia, North Carolina does not have unfair rules that say your father, mother, or other family member can only receive so much money from a jury in the case of professional negligence by a doctor or hospital. These limits are called "caps" because they cap off the amount that a jury can award in medical malpractice cases. The cap applies to all kinds of damages – lost income, future medical expenses, pain and suffering, as well as other economic and non-economic damages. For example, in Virginia, the cap of $2 million is the most that a family can get even if a young, working father and husband is killed by the fault of a doctor, regardless of what the actual money or emotional losses are to the family. That means that even if the full and fair compensation for the loss is more than $2 million dollars, the cap will prevent recovery for any loss above that amount.
Other states have a different type of unfair cap which says that the family can only get a certain amount of money for the non-economic damages, including the pain, anguish, and emotional harm caused to a loved one by the negligence of the healthcare provider. For example, under the limits in these states, if a young woman suffers severe facial scarring or her child dies from a preventable medical mistake, she can only recover whatever the state cap is for her lifelong feeling of loss. That figure is often only $250,000, no matter how much the injured person has suffered emotionally and will continue to suffer on a permanent basis.
The studies have shown when states impose these unfair restrictions, there is no beneficial effect. Caps do not improve anything; they have no effect on doctor’s malpractice insurance rates, the cost of healthcare insurance or healthcare, or the availability of doctors in rural communities. The only thing that happens when the government imposes these restrictions in favor of doctors and insurance companies is that the victim and his or her family are left without a full and fair recovery for a preventable harm. Therefore, the caps have the effect of giving consumers less protection. The good news is that North Carolina has not made this mistake and there is no arbitrary limit on how much can be recovered in a serious injury or wrongful death case involving medical negligence in the state.
5 Comments
Jim O'Hare AIC AIS VP med mal claims
Would you trade in the caps in exchange for a jury of peers?
If not , why not, if so, why not arbitration?
regards Jim
Shapiro, Lewis & Appleton
Thanks for the question Jim. I'm an advocate for the jury system that the U.S. Constitution came equipped with. I believe it is the bedrock of our democracy and the best way to achieve a just outcome in tragic circumstances-including medical negligence cases. Arbitrary caps on recovery are just that -- arbitrary -- and I contend that they violate the U.S. Constitution which provides for jury trials in common law civil cases. For example, how did legislators come up with $250,000 as the magic number to ease pain and suffering for a victim or the victim's loved ones? It's an arbitrary cap. The same problem arises with a "total" ceiling of $2 million for the loss of a loved one due to the negligence of a doctor or any medical providers/facilities. Where did that figure come from? It's incredibly low considering the EPA "estimated" the value of a human to be between $6-8 million. I personally don't believe you should put any arbitrary figure on a human life, but for arguments sake, these caps should have at least been developed with empirical data.
Regarding arbitration, this is a process that only takes place if both parties agree to it (i.e. the victim and the doctor). I don't believe the doctor who made the mistake should decide whether or not a case goes to arbitration (there would clearly be immediate bias in the decision). Arbitration is an option, but only if both adversarial parties agree.
Jim O'Hare AIC AIS VP med mal claims
Do you think that a physician ever gets a jury of peers? Never happens!! - Isnt that what our system envisioned- Peers="like rank and station in society." You would probably never allow a physician to sit on one of your juries, as the lack of peers is an advantage for plaintiff. The plaintiff bar actually goes out of its way to avoid the peer thing. Look up peer in any dictionary, you choose. I would rather a jury of peers, a group that could understand the pharmacology of Reglan and causation of Tardive dyskinesia. The well intentioned efforts of Joe citizen, trained by reruns of House and ER, does not a peer make, nor serve the physicians rights to a jury of peers. A lawyer, podiatrist, dentist or Masters in English would be close to peer status in my view. The cashier at Walmart, not so much. Arbitrators are peers. We each pick a doc and they agree on a third. your clients still grieve their case, but in a different and equal forum. Your thoughts? Do you really want peers?
REgards Jim
Rick Shapiro
I have been following this thread and I respect your views Jim, but all sides in any injury or civil case are entitled to bring in a qualified expert witness to explain complex issues-medical or otherwise-to juries. Understanding the "pharmacology of Reglan" or "causation of Tardive dyskinesia" is usually for an expert to explain. The jury's role is simple - determine if a mistake was made that violated medical standards-as explained by experts like doctors, and if that mistake contributed to the plaintiff's injury. You fail to recognize that a qualified medical professional must support the injured person's contention that a mistake was made! And, a doctor or hospital can call many experts in the field to prove a mistake was not made too! It appears that this fair system is still considered "unfair" by some doctors or hospitals and I do not agree with you. Our jury system doesn't let the doctors "stack a jury" with their professionals, just like an injured person cannot fill the jury box with their neighbors or friends either.
You appear to be a proponent of arbitration, which is okay. There are some positive aspects to arbitration. Nevertheless, can you really guarantee an arbitrator from the medical profession will be unbiased to an injury person? If you can't, then arbitration presents the same issues mentioned about the jury system. The fact is, neither system is perfect, but I prefer to go with what our framers believed was the best legal method - a jury comprised of citizens not biased to either party, and comprised of citizens of the jurisdiction of the court. If you support our US Constitution, why do you want exceptions in these kinds of cases that affect your industry?
Jim O'Hare AIC AIS VP med mal claims
Thanks Rick - The framers actually wanted a jury of peers - ( like rank and station in the community ). Docs intentionally dont get it, and you wouldnt allow it. Your view that all docs hang together as a fraternity is a simplistic argument. You imply that they will only testify against each other if paid. That is worse and not the case. docs are highly critical of other docs.
PEER-This is a basic Blacks dictionary definition, but use any. Medical defenses are complex and experts are there to sell to the well intentioned but outmatched jury, not inform. Einstein could explain particle thoery to me for a week, that does not mean that I get it.
re arbitration of medical treatment.- Who would know better than fellow doctors trained to do what the defendant did right or wrong? Certainly more knowing that joe citizen and with the ability to comprehend. With Docs, we each pick one, and they agree on the third, there is no explaining the medicine, just the treatment. No stacking involved. Doesnt this trim the process and remove any need for teaching, yielding a credible outcome? You state that our system shouldnt let the docs stack a jury with docs ! Where does that come from? Who suggests that? Having a system that allows the deciders of med mal be those with a capacity for understanding seems basic and eminently fair to the accused. Stacking the jury is packing them with those without capacity for complex science. regards Jim
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