Usually when we think of newsworthy medical malpractice cases, we think of patients who suffer serious physical injuries to their bodies, like a patient whose doctor left a sponge in his body after surgery or a patient whose left, instead of right, leg was operated on. Last month in Virginia, however, a man was awarded $500,000 for being “verbally brutalized” by his physician while he was sedated for a colonoscopy.
The man had taken his cellphone out to record the doctor’s post-operation instructions. The man’s phone was then placed in his pants, which were placed beneath the operating table. Inadvertently, the man did not turn of the recording on his phone and the phone recorded the audio of the man’s procedure. On his way home, the man began to play the recording of the instructions and found that there was lots of additional material.
During the procedure, the anesthesiologist mocked and insulted the man, calling the man a “retard” and a “big wimp” and describing a genital rash as “tuberculosis in the penis.” The doctor also told the sedated man “I wanted to punch you in the face and man you up a little bit.” The doctor went on to insult where the man went to college because it was formerly an all-women’s college and questioned the man’s sexuality.
The recording contained lots of additional material. The man’s complaint described the incident as being “verbally brutalized” and alleged that he suffered anxiety and embarrassment as a result of the incident, as well as loss of sleep. The doctor argued that the man did not suffer any physical injuries or miss any work. However, one jury member explained that the jurors felt that they had to award the man damages “just to make sure this doesn’t happen again.” The $500,000 award consisted of $100,000 for a defamation claims, 0,000 for the medical malpractice claim, and $200,000 for punitive damages.
Although this is different from the typical medical malpractice case, a plaintiff in a north carolina medical malpractice action must show that “the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities under the same or similar circumstances at the time of the alleged act giving rise to the cause of action.” (G.S. 90-21.12(a)) Virginia has a similar standard, which requires that a plaintiff show that a physician failed to comply with the appropriate standard of care.
Although technical skill and knowledge is a part of a health care provider’s standard of care, so is other behavior. For example, in the 1983 North Carolina case, Mazza v. Huffaker, a psychiatrist had sexual relations with his patient’s wife and the patient discovered the psychiatrist and his wife in bed together. The court held that this not only violated the standard of care a psychiatrist owed his patient but also was a “willful act” and “more than mere inadvertence on the part of the psychiatrist.” The psychiatrist “acted with conscious disregard of the mental well-being of” the patient.
However, when a plaintiff suffers non-economic damages, we have to think about damages caps. Virginia has a statutory damages cap which compensatory damages to $1.5 million and punitive damages $350,000. The Virginia statute does not limit non-economic damages.
However, as part of North Carolina’s 2011 tort reform, a statute was enacted which limited the amount of damages a plaintiff can receive for noneconomic damages to $500,000. G.S. 90-21.19(a) contains the relevant statute and states that
Except as otherwise provided in subsection (b) of this section, in any medical malpractice action in which the plaintiff is entitled to an award of noneconomic damages, the total amount of noneconomic damages for which judgment is entered against all defendants shall not exceed five hundred thousand dollars ($500,000). Judgment shall not be entered against any defendant for noneconomic damages in excess of five hundred thousand dollars ($500,000) for all claims brought by all parties arising out of the same professional services. On January 1 of every third year, beginning with January 1, 2014, the Administrative Office of the Courts shall reset the limitation on damages for noneconomic loss set forth in this subsection to be equal to five hundred thousand dollars ($500,000) times the ratio of the Consumer Price Index for November of the prior year to the Consumer Price Index for November 2011. The Administrative Office of the Courts shall inform the Revisor of Statutes of the reset limitation. The Revisor of Statutes shall publish this reset limitation as an editor's note to this section. In the event that any verdict or award of noneconomic damages stated pursuant to G.S. 90-21.19B exceeds these limits, the court shall modify the judgment as necessary to conform to the requirements of this subsection.
The tort reform doesn’t limit the amount that a plaintiff can receive for medical bills but for “noneconomic damages,” which G.S. 20-19(c)(2) defines as “Damages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, and any other nonpecuniary compensatory damage. "Noneconomic damages" does not include punitive damages as defined in G.S. 1D-5.” Subsection (3) defines “same professional services” as “The transactions, occurrences, or series of transactions or occurrences alleged to have caused injury to the health care provider's patient.”
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.