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State senate passes tort reform

The North Carolina General Assembly drew a step closer to malpractice reform with the approval Tuesday of a state senate bill that includes several important oversight components, but lacks a cap for damages due to pain and suffering.

 The malpractice reform bill, drafted by a select committee chaired by three Democrats, passed 27-19 with voting divided mostly along party lines. The bill calls for regulation of malpractice insurance rates, a $25 million fund to help cover insurance costs and the investigation of negligent doctors and lawyers who repeatedly file frivolous suits.

 The bill also includes two more original forms of oversight. Juries that decide malpractice occurred must award either the figure proposed by the patient's lawyer or the figure proposed by the doctor's lawyer. Moreover, if a panel of three referees and the jury both agree on whether the doctor or the hospital committed malpractice, the loser would pay the winner's court costs and legal fees.

 "I don't know anybody who's shouting 'Hosanna,'" said Sen. Tony Rand, majority leader of the Democrat-controlled senate and co-chair of the select committee. "But I think most people thought it was a fair and balanced approach."

 The legislators also hope to influence insurance rates through the evaluation of repeat-offense doctors and of lawyers who repeatedly sue. The American Bar Association will investigate lawyers while the North Carolina Medical Society will handle doctors.

 One controversial measure missing from the final version of the bill is a $250,000 cap on awards due to pain and suffering. This one issue has nearly split the state senate in two, just as other states consider implementing similar caps to combat rising insurance costs.

 "We didn't try to do what any other state was doing," Rand said. "Our staff anonymously said... a cap was unconstitutional. We therefore chose to go a different way." Rand said that he thinks the measures included in the bill will get a "real fix" on the problem. He added that of the eighteen states with caps, sixteen are in crisis or near-crisis situations with respect to insurance costs.

 James Andrews, president of the North Carolina State AFL-CIO, agreed that any fix should be aimed more directly at insurance costs instead of limiting pain and suffering awards.

 "I went into this with a clear mission of explaining... how terrible it would be for particular children, seniors and homemakers to put a cap on damages," Andrews said. "If in fact they're injured because of a mistake made by a practitioner, they have a lifetime of misery and pain and suffering, [and] you shouldn't punish the most vulnerable individuals." Andrews also suggested new sources of history on certain practitioners that wary patients can access.

 Sen. Robert Pittenger, a Republican who introduced a different malpractice reform bill last session which included a cap, decried the absence of a reward limit from Tuesday's bill.

 "It's an important element that needs to be addressed in a bill that's really going to have reform and impact on the costs of insurance," Pittenger said. He also denounced the inaction regarding attorneys' fees.

 Pittenger said the approved bill's measures will only provide "nominal" aid and called a cap on non-economic damages "critical."

 "We have a crisis because your providers cannot afford or can't even obtain insurance," Pittenger said. "Why is that? We have only four insurance carriers in the state." This dearth of insurance in health care, Pittenger said, results from the inability of underwriters to forecast the magnitude of insurance claims. If there were a cap, underwriters would be able to forecast, insurance carriers would trickle into the state and competition alone would force insurance costs further down.

 "It's so logical," Pittenger said. "The whole [anti-cap argument] is about politics and money... We've pandered to the trial lawyers, and they have even greater latitude now because of the $25 million fund." He explained that the fund will effectively subsidize insurance costs so that doctors can afford the huge rewards the lawyers are after. Now that the senate has gone home, all eyes are on the house, which will consider the bill next spring. Although the bill passed Tuesday contained no cap, the debate over reward limits is not over. Rand offered no predictions and added that the even split in the house will complicate matters further.

 Nevertheless, there has been talk in the senate that, if pushed, the Democratic caucus would consider a cap.

 "At some point, when there's a final bill enacted in both [the house and the senate], you'll see a cap," Pittenger said.


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