SUMMARY OF SB-44 (Medical Liability Reform)

PART ONE

Top Findings:

• The number of liability claims has increased dramatically since 1995.
• Increased costs to physicians and hospitals, which are passed down to consumers, result in higher insurance rates.
• These effects result in reduced availability to coverage.

Top Effects of Bill:

• Reduce frequency & severity of liability healthcare lawsuits.
• Decrease costs of claims
• Reduce rates for physicians and healthcare providers as well as citizens.
   

PART TWO (Notice & Pleadings)

• Pleadings in a suit based on healthcare liability claim cannot specify an amount of money claimed as damages (special exception can be filed).

PART THREE (Informed Consent)

• Theory of Recovery- in suits dealings with physicians not disclosing hazards or risks, recovery can only be obtained because of negligence on the physician’s part to disclose this information.
• Creation of the North Carolina Disclosure Panel- this panel will determine the risks and hazards related to medical care and surgical procedures that must be disclosed to patients.
  • Panel is located in the Department of Health & Human Services
  • Panel is composed of 9 members (3 lawyers, 6 doctors) Six-year terms.  Panelists are not paid, but reimbursed for expenses for duties.  Meetings are called at the request of the Chair or 3 members.
  • Panel will make thorough examination of all medical treatments & surgical procedures and determine which require disclosure to patient.
  • Panel will create separate lists for those procedures, which do and which do not require disclosure and establish a degree of disclosure required.
  • Panel will meet at least annually to examine new procedures and treatments.
• Duty of Physician or Health Care Provider
  • Before a patient consents to procedure listed on the Panel’s disclosure list, they must disclose risk and hazards of procedure.
  • Disclosure must be in writing, signed by patient, a competent witness, and list risks and hazards form Disclosure Panel.
• Effect of Disclosure
  • Failure to disclose risk and hazards can be included in charge to jury.
  • Failure to disclose may be found not negligent if there were an emergency or it was not medically feasible to make a disclosure.
• Informed Consent of Hysterectomies
  • The Disclosure Panel will develop written materials on risks and hazards of hysterectomies.

PART FOUR (Emergency & Volunteer Medical Care)

• Standard of Proof in cases involving Emergency Medical Care
  • If claimant can prove treatment (or lack of) departed from accepted standards reasonably accepted by prudent physicians.
• Jury Instructions in cases involving Emergency Medical Care
  • Whether healthcare provider had medical history of patient
  • Lack of pre-existing doctor-patient relationship
  • Circumstances of emergency
  • Circumstances surrounding delivery of medical care

PART FIVE (Statute of Limitations)

• Statute of Limitations on Healthcare Liability Claims
  • Claims must be filed within 10 years.
• Limitation on Non-Economic Damages
  • Limited to $250,000 regardless of number of physicians or healthcare providers.
  • If judgment rendered to more than one healthcare institution, then the maximum is $500,000 per claimant.
  • In wrongful death cases where judgment falls on physician or healthcare provider, then the maximum is not to exceed $500,000.
  • These amounts to be adjusted based on Consumer Price Index
• Organization Liability of Hospitals providing free care
  • Maximum a hospital or hospital system shall pay in compensation is $500,000 for any act resulting in death, damage, or injury to patient.
  • This applies even if patient is incapacitated.
• Expert Report
  • No later than 120 days after claim, plaintiff must submit an “expert report” to both parties.
• Qualifications of expert witness in action against physician
  • Currently practices medicine
  • Has knowledge of accepted standards of medical care
  • Is qualified by training or experience.
• Accounting for certain Collateral Source Payments
  • Collateral Source Payments are any current or future payments or benefits paid to plaintiff by government agency.  These may be used as evidence by the defendant.
• Arbitration Agreements
  • No physician or healthcare provider can request a patient to execute agreement to arbitrate unless waiver is signed.
• Periodic Payments
  • For awards of over $100,000 the defendant can pay award in “periodic payments” instead of the full sum at one time.
• Financial Responsibility
  • To authorize periodic payments of future damages, the court will require evidence of financial responsibility in an amount adequate to assure full payment of damages.
• Death of Recipient
  • Damages will continue to be paid to estate of deceased
  • Periodic payments, other than future loss of earnings, terminate on the death of recipient.
• Award of Attorney’s Fees
  • Based on life expectancy.
• Limit Attorney’s Fees paid on Contingency Fee Basis
  • 40% of the first $50,000 recovered
  • 33.33% of the next $50,000
  • 25% of the next $500,000 recovered
  • 15% of any amount for which recovery exceeds $600,000