Medical Liability Reform: S.B. 33 (2011)

| December 6, 2016

Bifurcation of Trials – Upon motion of any party in

Bifurcation of Trials – Upon motion of any party in an action in tort wherein the plaintiff seeks damages exceeding $150,000, the court shall order separate trials for the issue of liability and the issue of damages, unless the court for good cause shown orders a single trial. Evidence relating solely to compensatory damages shall not be admissible until the trier of fact has determined that the defendant is liable. The same trier of fact that tries the issues relating to liability shall try the issues relating to damages.

Expert Review – Current North Carolina law requires a plaintiff to have an expert witness who is qualified and willing to testify that there was a deviation in the standard of care in order for a case to proceed. B. 33 requires such expert witnesses to review all reasonably available medical records in making such a determination rather than relying on hypothetical scenarios.

Non-emergency Care – Provides that in any medical malpractice action arising out of the provision of emergency services, the health care provider shall not be liable for the payment of damages unless it is found that the care provided 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.

Emergency Care – Provides that in the treatment of an emergency medical condition, as defined in 42 U.S.C. § 1395dd(e)(1)(A), the claimant must prove a violation of the standards of practice by clear and convincing evidence.

Noneconomic Damages Reform – Limits noneconomic damages in medical liability cases to $500,000 against all defendants. The limit is subject to adjustments every three years starting on January 1, 2014, based on the Consumer Price Index. The legislation does provide for an exception to the limit if: (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 are the proximate cause of the plaintiff’s injuries, were committed in reckless disregard of the rights of others, grossly negligent, fraudulent, intentional or with malice.

Statute of Limitations for Actions by Minors or on Minor’s Behalf – Provides that an action may be brought at any time prior to a minor’s 10th birthday. For minors ruled to be abused or neglected, then the action must be commenced within three years of such judgment or consent order or before the minor reaches his/her 10th birthday – whichever is later. For minors in the custody of the state, county or child placing agency, the action must be brought one year post-custody or before the minor’s 10th birthday – whichever is later.