North Carolina Considering Limits to Non-Economic Damages in Medical Malpractice Cases

The North Carolina Legislature is considering proposed medical malpractice legislation that would limit damages for non-economic damages. The state has already enacted a law that caps monetary damages in negligence cases to $1 million where the parties agree to go to binding arbitration, but Bloomberg reports that few have actually exercised this option.

Proposed Malpractice Damage Cap

The legislation calls for a limit of $250,000 on non-economic damages, which include compensation for pain and suffering, disfigurement, mutilation, loss of a limb, paralysis, and death. Economic damages, which include medical expenses and the loss of past and future earnings, would remain unaffected. Some fear that this would only allow high-wage earners access to the courts to be adequately compensated for their injuries, since low-wage earners, housewives, retirees, and children would have limited economic damages. Given that expenses of prosecuting a medical malpractice action regularly exceed $100,000, there is a substantial likelihood that this latter class of malpractice victims may simply be unable to find legal representation for their claims.

Damage Caps in the Other States

There is currently in effect a limitation of $250,000 or less on recoverable non-economic damages in medical malpractice cases in a number of states, including California, Kansas, Montana, Texas, West Virginia, Idaho (the cap is adjusted annually for inflation), and Alaska (where the cap is $400,000 for wrongful death or catastrophic injury claims). Over 20 states also currently have some kind of limitation on recovery of non-economic or total damages in medical malpractice or personal injury cases, including Louisiana (whose intermediate appellate court recently overturned the limitation) and Ohio (which has a sliding cap on non-economic damages. Studies have routinely shown that damage caps have had no net effect in terms of reducing malpractice insurance premiums in the state which have implemented damage caps. Other states, such as Georgia, have seen such damage caps overturned by their State Supreme Courts on the basis that these caps are an unconstitutional taking of property. Indeed, recent Chief Justice of the North Carolina Supreme Court, I. Beverly Lake, advised the North Carolina Legislature that such a damages cap would violate the North Carolina Constitution.

Practical Effect of Recovery Caps

The practical effect of damage caps has been disproportionate harm to the elderly, poor, unemployed and their surviving families says a recent Forbes article. Many victims in states with damage caps have difficulty even finding a lawyer to represent them, since medical malpractice cases are risky, require the testimony of costly experts, and may require extensive and expensive discovery. Please contact your State Representative and State Senator to express your concern over the unconstitutional taking of property that will result from these damage caps.