Medical malpractice over the last 20 years has become a hot button issue with strong opinions from all sides. This article will look at the recent changes to the law and how those changes negatively affect individuals across North Carolina injured by medical malpractice.
The NC Legislator amended the law governing medical malpractice in October 2011 sharply reducing the rights of individuals injured by the negligence of medical providers. While a number of rules of evidence were changed, the cap on non-economic damages garnered the most public attention. Non-economic damages are typically referred to as pain and suffering and has been capped at $500,000.00 regardless of injury or death suffered. As such, a woman who has a mastectomy because a doctor misdiagnosed her will only be able to get $500,000.00 for her injuries. Even individuals who will require life-long care for their injuries will be capped at $500,000.00. This one size fits all approach is a boon to insurance companies but is detrimental to individuals.
There are exceptions to the cap and it is important that individuals who have been injured contact an experienced NC medical malpractice lawyer to discuss whether they fall within the exception. To satisfy the exception you must suffer a permanent injury, loss of use of a body part or disfigurement. Further, there must be evidence of gross negligence or reckless disregard for the safety of the patient by the physician. The most common example is when a physician is under the influence of an impairing substance. As such, while you may satisfy the first requirement satisfying the second requirement is quite difficult, which is the intention of the legislator when they wrote the bill.
The legislator did not cap economic damages. Economic damages include medical expenses, past, present and future, and lost income. Taking a global view of the law you can see that individuals without gainful employment (which also includes the very young and the elderly) become much more difficult to represent. This in effect whittles down the potential pool of claimants. This again was the intent of the legislature.
Lobbyists from the insurance companies could not eliminate medical malpractice laws but they were able to make them much more difficult for individuals. It was akin to achieving a goal of outlawing driving, not by outlawing cars, but by increasing the cost of gasoline by $100.00 a gallon.
Medical malpractice cases are extremely difficult cases. They are extremely time consuming and expensive. Depending on the case it is not unusual to spend $100,000 or more to position a case for settlement. This does not include the cost of a trial. The reason these cases are so expensive is because in North Carolina you are required to have a medical provider willing to testify that there has been a breach of the standard of care. However, most (if not all) of these experts charge for their time, sometimes very substantial amounts (Neurosurgeons are known to charge $30,000.00 to $60,000.00 a day for trial). Insurance companies are very aware of the expense to the plaintiff for these cases. The higher they can drive the cost of prosecuting these cases the less likely plaintiffs are going to move forward (especially now the damages have been capped).
Many malpractice insurers include stipulations in their policies that the physician must sign off on any settlement. This “admission” is sometimes difficult to make as no one likes to admit a mistake. This typically results in a long, expensive, and protracted fight between the sides. This is the goal of the insurance company.
It is not unusual to speak with a perspective client who has suffered a clear case of malpractice. In today’s environment however, you have to look past the liability and examine the damages. Best practices require complete transparency with your client. As such, our lawyers will have a very candid conversation with our clients from the beginning of their case. To do otherwise would be a disservice to your client. Clients must be made aware of the changes to the law and how it affects them. At that point they can make the best decision for themselves in how they wish to proceed.
Call (704) 714-1450 to make an appointment to speak with a Charlotte Medical Malpractice Attorney, or stop by the office during regular business hours. We will schedule an appointment that meets your needs.There is no fee for the initial consultation. Whether you call, come in the office or request a home visit you will speak directly with a Charlotte Medical Malpractice Attorney who can answer your questions.