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Medical Malpractice Non-Economic Damages Cap and Right to Trial By Jury

In 2011, the North Carolina legislature enacted tort reform for medical malpractice liability. Part of this tort reform limited the amount of damages a plaintiff can receive for noneconomic damages to $500,000. The tort reform doesn’t limit the amount that a plaintiff can receive for actual damages such as medical bills but it limits the amount a plaintiff can receive for “noneconomic damages.” G.S. 20-19(c)(2) defines “noneconomic damages” as “[d]amages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, and any other nonpecuniary compensatory damage.”

There is an exception to this cap on noneconomic damages. G.S. 90-21.19(b) states that

Notwithstanding subsection (a) of this section, there shall be no limit on the amount of noneconomic damages for which judgment may be entered against a defendant if the trier of fact finds both of the following:

(1)    The plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death.

(2)    The defendant's acts or failures, which are the proximate cause of the plaintiff's injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional or with malice.

Many other states have caps on non-economic damages in medical malpractice cases, and most of these caps were initially instituted to protect health care providers against frivolous lawsuits. However, some argue that such caps are unconstitutional in certain cases. Last year, the Florida Supreme Court held in Estate of McCall v. United States that the Florida statute which limited non-economic damages was unconstitutional, not under the right to trial by jury but under the equal protection clause. The Florida case involved a wrongful death claim and multiple claimants. The Florida Supreme Court reasoned that the statute “treats similarly situated, eligible survivors differently by reducing the damages awarded without regard to the fault of the wrongdoer and based solely upon a completely arbitrary factor, i.e., how many survivors are entitled to recovery. The greater the number of survivors who are eligible to recover noneconomic damages in a medical malpractice wrongful death action, the lesser the award that each individual survivor will receive.”

Florida is not the only state to declare such a cap unconstitutional. Three years ago, the Missouri Supreme Court held that the cap on non-economic damages in that state was unconstitutional under the right to trial by jury in Watts v. Lester E. Cox Medical Centers (2012). The Missouri statute was passed in 2005 and instituted a $350,000 cap on non-economic damages. In Watts, the jury had awarded the plaintiff $1.45 million in non-economic damages, but this award was reduced to $350,000 by the judge in accordance with the statutory cap. The plaintiff challenged this reduction, claiming that the statute violated her right to trial by jury. The Missouri Supreme Court agreed, reasoning that once the right to trial by jury attaches, the state constitution provides that it shall “remain inviolate” and that “the amount of noneconomic damages is a fact that must be determined by the jury and is subject to the protections of the ... right to trial by jury.”

Earlier this month, the Missouri state senate initially approved a bill that would reinstate caps on non-economic damages in medical malpractice cases. Supporters of the caps have expressed concern that having no limits could increase insurance costs for doctors in Missouri, making it more attractive to practice medicine in other states. This could then result in a harder time finding health care for consumers, as well as higher health care costs.

The new bill provides that typically a $400,000 cap on non-economic damages would apply. For “catastrophic injuries” (including paralysis, brain injury and loss of vision), the cap is raised to $700,000. The cap is also raised to $700,000 in wrongful death cases. The bill provides that the caps would increase by 1.7% each year.

This is not the first time that the Missouri legislature has attempted to reinstate a non-economic damages cap. However, in the past, Democrats in the state senate were reluctant to sign on to the bills. The current senate bill was the work of bipartisan compromise which increased the limits for certain types of injuries, as well as death.

Although the bill has passed the state senate, it still needs approval from the state house. Earlier this month, the state house passed a separate measure to reinstate a non-economic damages cap. However, that measure capped all non-economic damages in medical malpractice cases at $350,000.

Turning our focus back to the North Carolina statutory cap, we might wonder whether it is possible for the North Carolina non-economic damages cap to be challenged as the Missouri cap was in 2012. In fact, this argument was made in the Spring 2012 issue of the North Carolina State Bar Journal in an article titled “The Brave New World of Malpractice Litigation.” The article cites a letter written shortly after the introduction of the North Carolina law by the former Chief Justice of the North Carolina Supreme Court which expressed his view that the law did violate the constitutional right to trial by jury.

The North Carolina Constitution states that “In all controversies at law respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and shall remain sacred and inviolable.” The former Chief Justice stated that “[t]he North Carolina Supreme Court has long recognized that compensatory damages, including damages for ‘mental and physical pain,’ is a form of ‘property’ protected by the constitutional right to trial by jury.” While “the right to have punitive damages assessed… is not property,” “the right to recover actual or compensatory damages is property.” The former Chief Justice concluded that “the right to have a jury determine the amount of compensatory damages, including noneconomic damages” is “sacred and inviolable” and “cannot be eliminated or restricted by the General Assembly.”

If you have been injured as a result of medical malpractice, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.

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