AN ACT TO PROVIDE TORT REFORM FOR NORTH CAROLINA CITIZENS AND BUSINESSES. Summarized in Daily Bulletin 3/30/11, 5/10/11, 6/1/11, 6/13/11, and 6/14/11. Enacted June 24, 2011. Section 4.1(a) is effective June 24, 2011. The remainder is effective October 1, 2011.
Bill Summaries: all (2011-2012 Session)
Tracking:
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Summary date: Jun 30 2011 - View summary
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Bill H 542 (2011-2012)Summary date: Jun 14 2011 - View summary
Senate amendment makes the following changes to 4th edition. Amends proposed Rule 414 (Evidence of medical expenses) to (1) delete provision that specifies that nothing in the rule modifies current law governing the admissibility of evidence relating to collateral sources of payments and (2) delete provision that provides an exception for a provider to disclose the existence of a contract or negotiation with a third party as the basis for any discount provided to a plaintiff.
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Bill H 542 (2011-2012)Summary date: Jun 13 2011 - View summary
Senate committee substitute makes the following changes to 3rd edition. Deletes proposed GS 99B-12 and amendment to GS 99B-1, concerning product liability actions. Rewrites proposed Rule 414 in Article 4 of GS Chapter 8C to clarify that nothing in the rule modifies current law governing admissibility of evidence relating to collateral sources of payment, except that a provider, as defined, may disclose the existence of a contract or negotiation with a third party as the basis for any discount provided to a plaintiff. Amends proposed GS 8-58.1(c) to clarify that no presumption is established that the services provided were necessary because of injuries caused by the acts or omissions of an alleged tortfeasor. Amends GS 6-21.1(a) to provide that, along with other requirements, a judge may allow reasonable attorneys’ fees to the attorney representing the litigant, in certain cases, when the amount of damages recovered exceeds the highest offer made by the defendant no later than 90 days before commencement of the trial (removes language providing for different timetables depending on whether there was court-ordered mediation). Makes a conforming change to GS 6-21.1(b).
Provides that if Senate Bill 33 of the 2011 Session of the General Assembly becomes law, then a clarifying change is made to GS 90-21.12(b) as enacted by Senate Bill 33. This provision is effective when it becomes law.
Makes other clarifying changes. Makes provisions concerning the proposed Trespasser Responsibility Act effective October 1, 2011, and applicable to causes of actions arising on or after that date. All other provisions, unless noted, are effective October 1, 2011, and apply to actions commenced on or after that date.
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Bill H 542 (2011-2012)Summary date: Jun 1 2011 - View summary
House amendments make the following changes to 2nd edition. Amendment #1 amends Rule 414 to clarify that evidence offered to prove past medical expenses is limited to evidence of the amounts actually paid to satisfy bills that have been satisfied (was, all bills reasonably paid), and evidence of the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied. Makes a conforming change to GS 8-58.1, and provides that the testimony of a person under GS 8-58.1, as amended, establishes a rebuttable presumption of the reasonableness of the amount paid or required to be paid; provides instances in which the presumption is rebutted. States that the fact that a provider charged for services provided establishes a rebuttable presumption that the services were reasonably necessary.
Amendment # 2 amends proposed GS 99B-12 to provide the statute does not bar an action brought pursuant to Article 51 of GS Chapter 1, if the action is not based upon allegations that the product was not safe or effective or that the manufacturer failed to provide an adequate warning. Makes other clarifying and organizational changes.
Amendment #3 amends GS 6-21.1 to cap attorneys’ fees awarded under the statute at $10,000 (was, fees must not exceed the higher of $5,000 or 50% of the damages awarded).
Amendment #4 amends GS 99B-12, as amended, to create a rebuttable presumption that the drug alleged to cause harm in a product liability case was safe and effective for its approved use, and that the manufacturer or seller is not liable if the drug was approved by the FDA and had compliant labeling when the drug left control of the manufacturer or seller. Provides that this presumption is only rebuttable by clear and convincing evidence.
Amendment #5 deletes all previous amendments to GS 1D-25 concerning punitive damages awards over $100,000.
Amendment #7 amends GS 6-21.1 to provide that, along with other requirements, a judge may allow reasonable attorneys’ fees to the attorney representing the litigant, in certain cases, when the amount of damages recovered exceeds the highest offer made by the defendant no later than 30 days after the deadline for completion of court-ordered mediation, or no later than the earlier of either 180 days after the filing of the last responsive pleading or 90 days before commencement of the trial in cases where there is no court ordered mediation.
Amendment #8 amends Rule 414, as amended, to clarify that evidence presented to prove past medical expenses is limited to amounts actually paid to satisfy the bills, regardless of the source of payment. Clarifies that nothing in the rule modifies current law governing the admissibility of evidence relating to collateral sources of payments.
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Bill H 542 (2011-2012)Summary date: May 10 2011 - View summary
House committee substitute makes the following changes to 1st edition. Amends Article 4 of GS Chapter 8C by rewriting Rule 414 to clarify that the rule does not impose an affirmative duty to seek a reduction in billed charges to which a party is not contractually entitled, and deletes language stating that evidence of source of payment and rights of subrogation related to a payment are admissible. Amends GS 8-58.1 to delete a provision stating that the testimony of a specified person establishes a rebuttable presumption of the reasonableness of the amount of the charges. Amends GS 1D-25(d)(2) by clarifying that 75% of the amount over $100,000, less a proportionate part of the costs of litigation, including reasonable attorneys’ fees, be remitted to the Civil Penalty and Forfeiture Fund, and adds language to instruct the jury of the provisions of subsection (d) before the jury begins its deliberations.
Amends GS 99B-12 by clarifying that no manufacturer or seller of drugs is liable in any product liability action if the drug alleged to have caused harm was approved for safety and efficacy by the United States Food and Drug Administration (FDA) and its labeling was in compliance with the FDA’s approval at the time the drug left the control of the manufacturer or seller. Deletes proposed subsection (c) of GS 99B-12, which stated that the statute does not expand authority or affect liability, as specified.
Amends GS 6-21.1 to clarify that where there was an unwarranted refusal by the defendant to negotiate or pay the claim that is the basis for the suit, the amount of damages is $20,000 (was, $15,000) or less, and the damages recovered exceed the highest offer made by the defendant 30 days or more before the start of the trial (previously no time limit), then the presiding judge may, at the judge’s discretion, allow reasonable attorneys’ fees to the duly licensed attorney representing the litigant obtaining a judgment for damages in the lawsuit. Makes a conforming change.
Amends proposed GS 38B-3(2) by adding the following additional element which must be present for a possessor of land to be liable for the bodily injury or death of trespassing children resulting from an artificial condition of the land: the utility of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk to the child. Adds new subdivision (3) to GS 38B-3 to provide, as an exception to the general rule, that a possessor of land may be liable for the physical injury or death of a trespasser if the possessor discovers the trespasser in a position of peril or helplessness on the property and fails to exercise ordinary care not to injure the trespasser.
Deletes other provisions of previous edition with the exception of amendments to GS 8C-702(a), GS 99B-1, and proposed GS Chapter 38B. Makes other clarifying changes.
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Bill H 542 (2011-2012)Summary date: Mar 30 2011 - View summary
Amends Article 4 (Relevancy and Its Limits) of GS Chapter 8C (Evidence Code) adding a new Rule 414, Evidence of medical expenses, to provide that evidence offered to prove past medical expenses may include (1) all bills reasonably paid and (2) a statement of the amounts needed to satisfy the bills that have been incurred but not yet paid. Provides that evidence of the source of payment and the rights of subrogation related to the payment are admissible.
Amends GS 1-289 to clarify that in an appeal from a money judgment, a stay of execution on the money judgment requires execution of a written undertaking executed on the part of the appellant by one or more sureties as set forth in this statute. Provides that when there is a money judgment, the court is to specify the amount of the undertaking that is required to stay execution of the judgment pending appeal. Directs the court to determine the required amount of the undertaking after providing notice and a hearing that is proper and reasonable to secure the rights of the adverse party. Requires the court to consider relevant factors in making the determination.
Deletes provision setting a fixed amount of the undertaking to stay execution of a judgment in the amount of $25 million or more and deletes provision requiring the appellant to make an undertaking in the full amount otherwise required under this statute if the appellee proves by a preponderance of the evidence that the appellant is acting to evade the judgment.
Adds a new Article 7D to GS Chapter 8 to make certain collateral source payments admissible as evidence. Defines collateral source payments to mean a payment for any of a list of specified damages for which recovery is permitted in a civil action that is made to or for the benefit of a plaintiff or is otherwise available to the plaintiff. Specifies that a collateral source payment does not include gifts, gratuitous contributions or assistance, or payments arising from the assets of the plaintiff. Provides additional criteria regarding the admissibility of collateral source payments.
Amends GS 8C-702(a) to provide that an expert witness may testify in the form of an opinion or otherwise if all of the following apply: (1) the testimony is based upon sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case (was, an expert witness may testify in the form of an opinion).
Amends GS 1A-1, Rule 42(b) to direct the court to order separate trials for the issue of liability and the issue of damages upon the motion of any party in a tort action in which the plaintiff seeks damages exceeding $75,000. Prohibits admission of evidence relating only to compensatory damages until the trier of fact has determined that the defendant is liable. Requires the same trier of fact that tries the issues relating to liability to try the issues relating to damages.
Amends GS 1D-25 (Limitation of amount of recovery) to require that punitive damages awarded in excess of $100,000 be awarded by the presiding judge as follows: (1) 25% of the amount over $100,000 remitted to the plaintiff in accordance with applicable law and (2) 75% of the amount over $100,000 remitted to the Civil Penalty and Forfeiture Fund.
Amends GS 1A-1, Rule 9(j) to provide for the dismissal of any complaint alleging medical malpractice that does not specifically assert in the pleading that all medical records pertaining to the alleged injury that are then available to the plaintiff after reasonable inquiry have been reviewed by a person (1) who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence or (2) whom the complainant will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence.
Amends the definitions in GS 90-21.11 to include adult care home as licensed under GS Chapter 131D in the definition for the term health care provider. Makes conforming changes regarding the term adult care home. Expands the definition of medical malpractice action to include a civil action against a hospital, a nursing home, or an adult care home licensed under GS Chapter 131D for damages for personal injury or death when the civil action makes certain allegations and arises from the same facts or circumstances as a claim under sub-subdivision a. of subdivision (2) of GS 90-21-11.
Amends GS 90-21.12 to make conforming changes incorporating use of the term health care provider and medical malpractice action as amended in this act. Amends the standard of health care measure to require findings by the greater weight of the evidence that the care of the 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. Provides that a defendant health care provider is not liable for damages in a malpractice action arising out of the provision of or failure to provide services for an emergency medical condition unless the trier of fact finds by the greater weight of the evidence that the health care providers deviation from the standard of care constitutes gross negligence, wanton conduct, or intentional wrongdoing. Provides that nothing in new subsection (b) of GS 90-21.12 is to be construed to change, alter, override, or otherwise affect the provisions of GS 90-21.14 (First aid or emergency treatment; liability limitation), 90-21.15 (Emergency treatment using automated external defibrillator; immunity), 90-21.16 (Volunteer health care professionals; liability limitation), or 20-166 (Duty to stop in event of a crash; furnishing information or assistance to injured person, etc.; persons assisting exempt from civil liability). Effective October 1, 2011 and applies to causes of actions arising on or after that date.
Enacts new GS 90-21.19, to establish limited liability for noneconomic damages. Provides that the total amount of noneconomic damages for which judgment is entered against all defendants in a medical malpractice action is not to exceed $250,000 per defendant. On January 1 of every third year, beginning with January 1, 2014, requires the Administrative Office of the Courts to reset the limitation on damages for noneconomic loss to be equal to $250,000 times the ratio of the Consumer Price Index for November of the prior year to the Consumer Price Index for November 2011. Directs the court to modify any judgment as necessary to fit the requirements of this section. Provides definitions for consumer price index and noneconomic damages. Directs the court not to instruct a jury as to the limit set on noneconomic damages and prohibits a witness or an attorney for any party from informing the jury or potential jury members of that limit. Provides that any award of damages in a medical malpractice action is to be stated in accordance with new GS 90-21.19B, which requires that any verdict or award of damages in a medical malpractice action specifically indicate what amounts are awarded for each of the following: (1) noneconomic damages, (2) present economic damages, (3) future economic damages, (4) loss of future earnings, and (5) loss of future household services. Provides, if applicable, the court is to instruct the jury on the definition of noneconomic damages under GS 90-21.19(b) and the definition of future economic damages under GS 90-21.19A(a). Effective October 1, 2011 and applies to causes of actions arising on or after that date.
Amends GS 1A-1, Rule 26(f1) regarding the medical malpractice discovery conference to set requirements for designated expert witnesses. Requires that the designation as an expert witness be accompanied by a written report prepared and signed by the designated witness. Specifies information to be contained in the written report.
Amends GS 99B-1 to add a definition for government agency meaning this State or the United States or any agency of this state or the United States, or any entity vested with the authority of the United States to issue rules, regulations, orders, or standards concerning products or services.
Enacts GS 99B-12 to provide that a manufacturer or seller meeting regulatory compliance standards as specified in subsection (a) of this statute cannot be held liable in any product liability action. Provides that if the claimant proves that the manufacturer or seller engaged in specified acts at any time before the event occurred that allegedly caused the harm then the immunity from liability in subsection (a) does not apply. Provides that nothing this statute is to be construed as (1) expanding the authority of any state agency or state agent to adopt or promulgate standards or regulations where no such authority to do so previously existed, (2) reducing the scope of any limitation on liability based on compliance with the rules or regulations of a government agency applicable to a specific act, transaction, person, or industry; or (3) affecting the liability of a service provider based on rates filed with and reviewed or approved by a government agency. Effective October 1, 2011 and applies to causes of actions arising on or after that date.
Amends GS 6-21.1 to provide an allowance of attorneys’ fees in certain cases. Provides that where there was an unwarranted refusal by the defendant (was, insurance company) to negotiate or pay (was, pay) the claim that is the basis for the suit, the amount of damages is $15,000 (was, $10,000) or less, and the damages recovered exceed the highest offer made by the defendant prior to the start of the trial, the presiding judge may, at the judge’s discretion, allow a reasonable attorneys’ fee to the duly licensed attorney representing the litigant obtaining a judgment for damages in the lawsuit. Limits the amount of the attorneys’ fees awarded to no more than $5,000 or 50% of the damages awarded. Requires the presiding judge who determines that attorneys’ fees are to be awarded under this statute to issue a written order that includes findings of fact detailing the factual basis for the judge’s decision to award attorneys’ fees.
Enacts a new GS Chapter 38B, the Trespasser Responsibility Act. Provides that as a general rule a possessor of land, including an owner, lessee, or other occupant does not owe a duty of care to a trespasser and is not liable for any injury to a trespasser. Provides exceptions to the general rule, declaring that a possessor of land may be liable for the physical injury or death of (1) a trespasser intentionally caused by the possessor, or resulting from the possessor’s willful or wanton conduct, and (2) trespassing children resulting from an artificial condition of the land of which the possessor had certain specified knowledge and control. Provides definitions for (1) child trespasser, (2) possessor, and (3) trespasser. Effective October 1, 2011 and applies to causes of actions arising on or after that date.
This act includes a severability clause.
Except as otherwise indicated, effective October 1, 2011 and applies to actions commenced on or after that date.