North Carolina Medical Malpractice Caps: Are They Constitutional?
In North Carolina, if you are a victim of medical negligence, you are limited to recovering only $533,409 (as of January 1, 2017) for what is called “non-economic” damages. In general terms, “economic” damages are those that are money-related such as lost wages, medical bills, and out-of-pocket expenses like transportation and medications. Non-economic damages for medical malpractice cases in North Carolina can include items like:
- Physical pain and suffering;
- Emotional distress;
- Loss of limb;
- Loss of normal life;
- Loss of society; and
- Loss of consortium.
See North Carolina Gen. Stat. 90-21.19.
A victim can avoid the cap if the victim can prove BOTH that the medical provider’s actions were grossly negligent, fraudulent, reckless, intentional, or committed with malice AND the victim suffered disfigurement, loss of use of a body part, permanent injury, or death. The $533,409 cap also applies to ALL possible negligent medical providers; that is, the cap is not applicable to EACH doctor, nurse, hospital, etc.
Many consider such limitations to be unfair. Two recent cases, one in Florida and one in Wisconsin, have held that limits on non-economic damages are unconstitutional. This raises the question about the constitutionality of such caps on non-economic damages here in North Carolina. While Brown Moore & Associates is the only law firm in North Carolina to successfully “bust” the cap and recover full non-economic damages for a client there has not yet been a North Carolina case challenging whether this cap on non-economic damages violates the North Carolina Constitution.
The Florida Case — North Broward Hosp. v. Kalitan
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As recently reported, the Florida Supreme Court declared unconstitutional medical malpractice damages caps that had been in place in Florida since 2003. See North Broward Hosp. v. Kalitan, 219 So. 3d 49 (Fla. Supreme Court 2017). In that case, Kalitan underwent surgery in 2007 for the carpal-tunnel syndrome. But malpractice during the anesthesia process cut and sliced her esophagus. When Kalitan woke up after surgery, she complained of excruciating pain in her chest and back. She was given medication and sent home. The next day, a neighbor found Kalitan unconscious at her home and she was rushed to the emergency room of a nearby hospital. Kalitan was given emergency surgery to repair her esophagus, was placed into a drug-induced coma for several weeks, and underwent additional surgeries and intensive therapy to begin eating again and regain mobility.
Kalitan filed a lawsuit in 2008 against the North Broward Hospital District and other defendants. A jury rendered a verdict for $4 million in non-economic damages, but the amount was reduced by about $2 million because of the caps on non-economic damages under Florida law.
On appeal to the Florida Supreme Court, the cap was held unconstitutional in violation of equal protection. Essentially, in normal cases, every citizen must be treated equally unless there is a good reason for the law to divide citizens into classes, and if those classifications are rationally related to a proper governmental objective. In Kalitan, the rational reason asserted by the State of Florida was addressing the medical malpractice insurance “crisis.” The divisions created in the statute were two: victims of malpractice with minor injuries vs. those with severe injuries and victims with claims against one negligent medical provider vs. those with claims against many providers.
The court held these divisions to be irrational in the sense that statutory classifications did not help accomplish the goal of dealing with the supposed medical malpractice “crisis.” The court said the classifications were “arbitrary” as there is no definitive evidence the caps reduced malpractice insurance premiums as lawmakers claimed they would. Further, the caps on non-economic damages unfairly infringed upon the rights of the victims. The caps punished victims who had more severe and more devastating losses because victims with minor injuries always received full compensation, whereas victims with severe injuries never received full compensation. In the same way, the caps rewarded negligent doctors and hospitals because the worst cases of malpractice and substandard care were the ones where damages were limited. The defendants were also rewarded where there were many physicians and caregivers at fault since the cap did not apply to each tortfeasor, but to all of them.
As such, the law placing an on non-economic damages was struck down in Florida.
The Wisconsin Case — Mayo v. Wisconsin Injured Patients & Families Compensation Fund
A similar result occurred in a Wisconsin case in July 2017. See Mayo v. Wisconsin Injured Patients & Families Compensation Fund, Appeal No. 2014AP2812 (Wis. App. 1st Dist. 2017). In Mayo, Ms. Ascaris Mayo went to a hospital complaining of abdominal pain and a high fever. She had an infection that the doctors diagnosed, but they did not inform Mayo of her infection or prescribe antibiotics. Soon thereafter, the infection became septic, resulting in organ failure and gangrene. Ultimately, the infection resulted in the amputation of all of her legs and arms.
She sued the doctor, the hospital, and other defendants over claims that their negligence resulted in preventable permanent injuries. The jury found the doctor and his physician’s assistant negligent and rendered a verdict for Ms. Mayo in the amount of $15 million in non-economic damages, as well as $1.5 million to her husband. Due to a Wisconsin state law that placed caps on non-economic damages, however, the court reduced the jury’s verdict to $750,000.
On appeal, the Wisconsin court declared the cap on non-economic damages to be unconstitutional. In line with the Kalitan decision, the Wisconsin judges ruled that the cap violated the right to equal protection. The court noted that the cap always reduces non-economic damages only for victims who suffer the most severe injuries, yet allows the full amount of damages for less severely injured victims. The court ultimately concluded that no objective sought by the State of Wisconsin allowed the State to treat the most seriously injured patients of medical malpractice less favorably than those less seriously injured.
Is the North Carolina Cap on Non-economic Damages Unconstitutional?
As noted, there has not yet been a constitutional challenge made to North Carolina’s cap on non-economic damages. North Carolina’s law could certainly be challenged on equal protection grounds. Other constitutional challenges could be made including the possibility that such might violate the right to a jury trial. See Moore v. Mobile Infirmary Ass’n, 592 So. 2d 156 (Ala. 1991) (cap strips jury of its power to decide facts and determine damages thereby denying plaintiff’s right to jury trial).
It is unknown how a North Carolina appellate court might handle a constitutional challenge. Many believe that medical malpractice damage caps are exceedingly unfair and impose nonsensical burdens on the most catastrophically injured patients. These caps were lobbied for and benefit profit-driven hospitals and malpractice insurance companies. The victims and their families are left to bear the burden of not receiving the full compensation awarded to them by a jury of their peers.
And, as we wrote recently, there are now efforts to further limit non-economic damages at the federal level. If HR 1215 is enacted, the cap would fall to $250,000.
Contact Brown Moore & Associates to Discuss Medical Malpractice Caps
Medical malpractice is a complex and daunting area of law. If you have suffered because of medical negligence, you need experienced and proven lawyers to help. If you or a loved one has been injured by medical negligence or if you want more information, contact Brown Moore & Associates. We offer free consultations. Contact our office today.