MEDICAL LIABILITY REFORMS.

View NCGA Bill Details2011-2012 Session
Senate Bill 33 (Public) Filed Wednesday, February 2, 2011
TO REFORM THE LAWS RELATING TO MEDICAL LIABILITY BY PROVIDING LIMITED PROTECTION FROM LIABILITY TO THOSE PROVIDING EMERGENCY MEDICAL CARE, BY AUTHORIZING THE BIFURCATION OF TRIALS ON ISSUES OF LIABILITY AND DAMAGES IN CERTAIN ACTIONS, BY LIMITING THE AMOUNT OF NONECONOMIC DAMAGES THAT MAY BE AWARDED, BY AUTHORIZING THE PERIODIC PAYMENT OF FUTURE ECONOMIC DAMAGES IN LIEU OF A LUMP-SUM PAYMENT, AND BY MODIFYING APPEAL BONDS IN MEDICAL MALPRACTICE ACTIONS. This act is effective October 1, 2011.
Intro. by Apodaca, Brown, Rucho.

Status: Ch. SL 2011-400 (Senate Action) (Jul 25 2011)

Bill History:

S 33/S.L. 2011-400

Bill Summaries:

  • Summary date: Jul 25 2011 - More information

    AN ACT TO REFORM THE LAWS RELATING TO MONEY JUDGMENT APPEAL BONDS, BIFURCATION OF TRIALS IN CIVIL CASES, AND MEDICAL LIABILITY. Summarized in Daily Bulletin 2/2/11, 3/1/11, 3/2/11, 4/19/11, 4/20/11, and 6/9/11. Enacted July 25, 2011. Effective October 1, 2011.


  • Summary date: Jun 9 2011 - More information

    Conference report recommends the following changes to 5th edition to reconcile matters in controversy. Amends Rule 9(j), clarifying that the pleading must assert specified information pertaining to the alleged negligence (was, alleged negligence and resulting injuries). Rewrites proposed GS 90-21.12(b) to provide that a claimant must prove a violation of the standards of practice set forth in subsection (a) of the statute by clear and convincing evidence in any medical malpractice action arising out of the furnishing or failure to furnish professional services in the treatment of an emergency medical condition, as defined (previously, services specifically in a hospital emergency room).
    Amends proposed GS 90-21.19 to add additional language providing that judgment against any defendant for noneconomic damages is capped at $500,000 for all claims brought by all parties arising out of the same professional services. Provides that there is no limit on the amount of noneconomic damage for which judgment may be entered if the trier of fact finds that: (1) the plaintiff suffered disfigurement, loss of use of part of the body, permanent injury or death; and (2) the defendant’s acts or failures, which caused the plaintiff’s injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional, or with malice. Adds additional language to direct the Administrative Office of the Courts to inform the Revisor of Statutes of the reset limitation and directs the Revisor of Statutes to publish this reset limitation as an editor’s note to the statute. Adds same professional services as a defined term in the statute.
    Provides that if the provision of the act concerning the limit for noneconomic damages is declared to be unconstitutional or otherwise invalid, then the provision of the act concerning verdicts or awards specifying what amount is awarded for noneconomic damages, is repealed (previously also provided for the repeal of provision concerning actions commenced by persons on behalf of minors).
    Makes other clarifying changes.


  • Summary date: Apr 20 2011 - More information

    House amendments make the following changes to 4th edition. Amendment #1 deletes GS 90-21.19A (allowing periodic payments rather than lump-sum payments of certain medical malpractice damages awards), and amends new GS 90-21.19B to require a verdict or award of damages in a medical malpractice case to specify what amount, if any, is awarded only for noneconomic damages (was, noneconomic damages, present economic damages, future economic damages, loss of future earnings, and loss of future household services). Amendment #2 changes the definition of noneconomic damages in GS 90-21.19(b)(2) by removing the reference in the 4th edition to damages for physical impairment and disfigurement, and by adding an exclusion for damages to compensate for scars or disfigurement, loss of use of a body part, permanent injury, or death. Amendment #3 changes amendment #2 by deleting its reference to “scars” in the definition of noneconomic damages. Amendment #5 amends GS 1A-1, Rule 42(b)(3), to add that the court may, for good cause shown, order a single trial for the issues of liability and damages in a tort action in which a plaintiff seeks in excess of $150,000.


  • Summary date: Apr 19 2011 - More information

    House committee substitute makes the following changes to 3rd edition.
    Amends GS 1A-1, Rule 42(b), clarifying that the court must order separate trials for the issue of liability and the issue of damages, upon motion by any party in an action in tort (rather than a medical malpractice action) where the plaintiff seeks damages exceeding $150,000 (rather than an amount equal to or exceeding $75,000). Amends GS 1A-1, Rule 9(j), deleting the requirement that the plaintiff provide an affidavit from the expert witness to the defendant, and restores language requiring the plaintiff to show compliance with up to ten written interrogatories. Makes clarifying changes. Adds a section amending GS 8C-702(h), prohibiting a person from giving expert testimony in a medical malpractice action on the appropriate standard of care as to administrative or other nonclinical issues unless the person has substantial knowledge, as specified (strengthens current language). Makes a clarifying change. Adds a section amending GS 90-21.11 to clarify definitions for health care provider and medical malpractice action; applies to causes of action arising on or after October 1, 2011.
    Amends GS 90-21.12, adding that a claimant must prove a violation of the standard of health care by clear and convincing evidence in any medical malpractice action arising out of the provision or failure to provide professional services in a hospital emergency room. Clarifies that, in the case of a medical malpractice action, the defendant health care provider will not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the provider’s action or inaction did not comply with the standards of practice among similar health care providers situated in the same or similar communities under the same or similar circumstances at the time of the alleged act (was, unless the trier of fact finds that the provider’s deviation from the standard of care constituted gross negligence, wanton conduct, or intentional wrongdoing). Makes clarifying changes. Applies to causes of action arising on or after October 1, 2011.
    Amends proposed GS 90-21.19, clarifying that the total amount of noneconomic damages for which judgment is entered against all defendants will not exceed $500,000 (was, will not exceed $500,000 per plaintiff). Deletes language prohibiting a judgment against any defendant in excess of $500,000 for all claims brought by all parties arising from the same cause of action. Makes organizational changes.
    Adds a new section to enact new subsection (c) to GS 1-17, providing that an action for a minor with injuries allegedly resulting from malpractice will commence as detailed in GS 1-15(c), except as specified. Makes a conforming change. Applies to causes of action arising on or after October 1, 2011.
    Deletes amendments to GS 1A-1, Rule 26(f1), which pertained to expert witnesses in medical malpractice discovery conferences.
    Changes the bill title to AN ACT TO REFORM THE LAWS RELATING TO MONEY JUDGMENT APPEAL BONDS, BIFURCATION OF TRIALS IN CIVIL CASES, AND MEDICAL LIABILITY. Makes organizational changes.
    Effective October 1, 2011, unless otherwise indicated, and applicable to actions commenced on or after that date.


  • Summary date: Mar 2 2011 - More information

    Senate amendment makes the following changes to 2nd edition. Amends proposed GS 90-21.19 (liability limit for noneconomic damages) to require the Administrative Office of the Courts to reset the limitation on damages for noneconomic loss on January 1 of every third year, beginning with January 1, 2014, so that the limitation is equal to $500,000 times the ratio of the consumer price index for November of the prior year to the Consumer Price Index for November 2011. Defines consumer price index.


  • Summary date: Mar 1 2011 - More information

    Senate committee substitute makes the following changes to 1st edition. Amends GS 90-21.12(a) to clarify that in any medical malpractice action, the defendant health care provider is not liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the care provided by the health care provider was not in accordance with the standard 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 or omission giving rise to the cause of action.
    Clarifies that in any medical malpractice action arising from the furnishing or the failure to furnish services mandated under 42 USC Section 1395dd for an emergency medical condition as defined in 42 USC Section 1395dd(e)(1) (was, any medical malpractice action arising from providing emergency services as defined in GS 58-3-190(g)(2)), the defendant health care provider is not liable for damages unless the trier of fact finds by the greater weight of the evidence that the health care provider’s deviation from the standard of care required under GS 90-21.12(a) (was, failed to meet the applicable standards of practice) constituted gross negligence, wanton conduct or intentional wrongdoing. Amends proposed GS 90-21.19 to limit the total liability for noneconomic damages for which judgment is entered against all defendants to no more than $500,000 (was, $250,000) per plaintiff. States that judgment will not be entered against any defendant for noneconomic damages in excess of $500,000 for all claims brought by all parties arising out of the same cause of action.
    Amends the definition for future economic damages to include loss of future household services. Requires the finder of fact to specify what part of the amount awarded for future economic damages is awarded for loss of future earnings or loss of future household services. Permits the payment of future economic damages, to be made periodically at regular intervals to the plaintiff if the present value of the future economic damages is greater than or equal to $200,000 (was, $75,000). Permits the court that entered the original judgment to also modify the judgment to allow liability for future periodic payments compensating the plaintiff for loss of future household services (was, only for the loss of future earnings), to continue to be paid to the survivors to whom the plaintiff owed a duty of support under the law immediately prior to the plaintiff’s death.
    Amends proposed GS 90-21.19B to require that any verdict or award of damages in a medical malpractice action must also include the specific amount awarded for loss of future earnings and loss of future household services (was, only required specific amounts for noneconomic damages, present economic damages, and future economic damages).
    Adds new section to amend GS 1A-1, Rule 9(j) to assert that any complaint alleging medical malpractice, as defined in GS 90-21.11, will be dismissed unless the pleading specifically asserts that the medical care and all medical records pertaining to the alleged injury have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and whom the plaintiff will seek to have qualified as an expert witness by motion under Rule 702(e) of the Rules of Evidence. Requires that the plaintiff provide an affidavit within 30 days from the expert witness certifying compliance with this subsection upon request from the defendant. Deletes language regarding proof of compliance with regard to interrogatories.
    Adds new section to amend GS 1A-1, Rule 26(f1) to require that for each expert witness designated as such at the discovery conference, each witness must prepare and submit a written, signed report. Specifies material to be covered in the expert witness report and additional information to be submitted as to the expert witness qualifications.
    All of the above provisions apply to causes of action arising on or after the effective date, October 1, 2011.
    Amends GS 1-289 to provide that in an action where the judgment requires a monetary payment, the court is to specify the amount of the monetary payment required to stay the execution of the judgment while an appeal is pending as provided in subsections (a2) and (b) of GS 1-289. Deletes previous provision that the appellant in a medical malpractice action pay the lesser amount of the judgment or the appellant’s medical malpractice coverage in order to stay the execution of the judgment while pursuing an appeal. Applies to actions commencing on or after the effective date, October 1, 2011.
    Provides that if the provisions regarding setting liability limits for noneconomic damages (Section 3 of the act) are declared unconstitutional or otherwise invalid by a court of competent jurisdiction, following any appellate review, then proposed GS 90-21.19A, (periodic payment of future economic damages in medical malpractice actions), and proposed GS 90-21.19B, (verdicts and awards of damages in medical malpractice actions) are repealed but the invalidity does not affect the other provisions of the act.
    Makes other technical changes. Makes additional conforming changes and amends the title to reflect changes to the bill content.


  • Summary date: Feb 2 2011 - More information

    This act is effective October 1, 2011.
    Amends GS 90-21.12(a) to clarify that in any medical malpractice action, the defendant health care provider is not liable for the payment of damages unless the trier of fact finds (was, is satisfied) by the greater weight of the evidence that the care provided by the health care provider was not in accordance with the standard of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action. Adds new subsection (b) to provide an exception to any medical malpractice action that arises from providing emergency services as defined in GS 58-3-190(g)(2). Provides that in such an action regarding provision of emergency services, all of the criteria set out in subsection (a) for any medical malpractice action apply and in addition, the trier of fact must find by the greater weight of the evidence that the failure to meet the applicable standards of practice constituted gross negligence, wanton conduct, or intentional wrongdoing by the health care provider. Provides that nothing in subsection (b) is to be construed to change, alter, override, or otherwise affect the provisions of GS 90-21.14, 90-21.15, 90-21.16, or 20-166. Applies to causes of action arising on or after the effective date.
    Amends GS 1A-1, Rule 42(b) to authorize the separation of trials on issues of liability and issues of damages when the medical malpractice action is begun under Article 1B of GS Chapter 90 and the plaintiff seeks $75,000 or more in damages. Requires the same trier of fact to try both the issues relating to liability and the issues relating to damages. Applies to actions commenced on or after the effective date.
    Enacts new GS 90-21.19 to define and set liability limits for noneconomic damages. Enacts new GS 90-21.19A to allow the payment of future economic damages, defined as damages for future medical expenses, to be made periodically at regular intervals to the plaintiff. Provides additional governing criteria regarding a judgment authorizing periodic payments. Enacts GS 90-21.19B to require that any verdict or award of damages in any malpractice action is to specifically indicate the amount awarded for (1) noneconomic damages, (2) present economic damages, and (3) future economic damages. Applies to causes of action arising on or after the effective date.
    Amends GS 1-289 to modify appeal bonds in a malpractice action, as defined in GS 90-21.11, to require that the appellant provide the lesser of the amount of the judgment or the amount of the appellant’s medical malpractice insurance coverage that is applicable to the action in order to stay execution of the judgment. Makes additional conforming changes. Applies to judgments entered on or after the effective date.


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