At least thirty states across the country have enacted some form of cap on the so-called pain and suffering damages available to victims of medical malpractice. Republicans in the General Assembly have repeatedly introduced similar legislation in North Carolina, but in the past have been stymied by Democrats. This year, another bill capping damages and changing the medical malpractice system is making its way through the legislature. And with Republicans in control it has a good chance of passing the General Assembly.
At a hearing of the Senate Judiciary Committee a few weeks ago, State Legislators were introduced to Ethan Boone. The three-year-old was taken to an emergency room by his parents a couple of years ago with a meningococcal blood infection. By the time he left the hospital a few months later, he had lost his arms, his legs and part of his face.
Chris Boone: "And just… stole his childhood pretty much."
His parents Heather and Chris are suing the hospital and the doctors, alleging Ethan was misdiagnosed and mistreated. Part of what they say they’re looking for is compensation for all the expenses Ethan’s condition creates now, and will create over his lifetime.
Heather & Chris Boone:"Just … improving his life, making it as independent as possible. Because we’re not always going to be here. We’re not only going to be able to take care of him."
The Boones are suing for future medical expenses, and they’re also suing for non-economic damages, so-called pain-and-suffering awards that sometimes make headlines.
New legislation introduced in this session would limit those non-economic damages. Mecklenberg Republican Bob Rucho sponsored the legislation. Rucho’s a dentist.
Bob Rucho: "There are a number of cases where we get reports back that physicians are practicing defensive medicine, tests that might not be necessary but if I don't do it then if I get sued I’m not going to have protection."
Rucho also says caps discourage frivolous lawsuits. But the evidence shows few people actually sue. A study published last year in the New England Journal of Medicine reports at least 4,000 people in North Carolina die annually from medical errors, and many more are injured. Malpractice suits filed in North Carolina number around four hundred fifty annually. But Senator Rucho and others say malpractice and defensive medicine are a big driver of increasing health care costs.
Rucho: "Which adds numbers between I've seen 10 and 20 percent to the cost of health care across the board. Something we would like to see reduced."
Which is why Rucho would like to see the cap on non-economic damages set at half a million dollars. Right now, the amount is decided by juries.
So why do people sue for non-economic damages? It’s complicated - sometimes it’s to punish the doctor. Some say it’s because victims are fishing for money. But often, the problem really comes for victims who don’t have a job – children, seniors, stay-at-home moms. They don’t earn a salary, so they don’t qualify for economic damages. If the legislature caps non-economic damages, it would limit how much people like the Boones could recoup for a child’s losses over a lifetime. Democratic state Senator Josh Stein is an attorney. He says rules already in place discourage so-called frivolous lawsuits, where people might fish for money.
Josh Stein: "This body enacted other reforms in the 1990s whereby you have to have expert testimony, it's called rule 9J, before you can even bring one of these actions. So you have to hire an expert, that expert is deposed by the other side, they have an expert, you have to depose that expert, all of this costs thousands and thousands of dollars."
Stein proposed an exception to the cap for non-working people, but it was struck down in committee.
People on all sides say the malpractice system does need changing because, as it stands now, doesn’t work well for anyone – doctors or patients. And it doesn’t do anything to prevent mishaps. But health policy experts say malpractice is not one of the cost drivers in health care. Senator Rucho and others say ten to twenty percent of health care costs come from malpractice. But Don Taylor disagrees. He’s a health policy professor at Duke University.
Don Taylor: "The estimates would be one to nine percent of the health system spending. So there are real costs, they will not revolutionize the system."
Taylor says he supports malpractice reform, even as he notes malpractice caps in other states haven’t been shown to affect the cost of care
Taylor: "Part of me would say go ahead and pass the non-economic caps and tell us how much it’s gonna slow down health care costs. Go ahead and say, we think it’s gonna do this to overall health care costs in North Carolina, and then when it doesn’t happen, we’ll be talking again. Because it will not work, it’s been proven across the states not to slow health care costs overall."
Studies have noted that malpractice caps tend to lower the cost of insurance premiums for doctors – especially those in high-risk specialties – although not as much as doctors hoped.
State health leaders such as UNC Hospital head Bill Roper agree that there should be changes. Roper’s for the caps legislation as a start to reforming the medical malpractice system.
Bill Roper: "if somebody is injured, and a lot of people are, if somebody is injured in the course of getting medical treatment they deserve to be compensated. The point I'm trying to make is that we have a system now that rewards a few people with large amounts of money and the vast majority of people who are injured don't get anything."
Roper’s a proponent of a special medical court system that would hear injury cases. He says there are other pieces of legislation that need to accompany the caps.
Roper:" We need a system that identifies people, that encourages providers to say I'm sorry and to admit the problems that have happened, and then in a speedy fashion rewards people who have been injured in the course of getting medical treatment. That's a system that ultimately we need to get to."
But Senator Rucho says the current bill is the only malpractice legislation that he has planned.
Hoban: "So there’s no other proposed medical malpractice…"
Rucho: "Did you read the bill?"
Hoban: "I have, yes."
Rucho: "OK. That’s what you see."
Hoban: "So there’s nothing that will come subsequently?"
Rucho: "Not that I see, unless the House comes forward with some different ideas."
The bill passed the Senate yesterday by a vote of 36 to 13 and is on it’s way to the House.