Bill Summary for H 542 (2011-2012)

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Summary date: 

Mar 30 2011

Bill Information:

View NCGA Bill Details2011-2012 Session
House Bill 542 (Public) Filed Wednesday, March 30, 2011
Intro. by Rhyne, McComas, Brisson, Crawford.

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Bill 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.