Blind Justice – NC Jurors Are Not Told That They Do Not Decide The Actual Award In A Medical Malpractice Case

A Fayetteville, NC jury recently decided that a surgeon was negligent in his care of a patient.  As a result of a hole left in the woman’s bowels after colon surgery, the patient endured lengthy hospital stays, three additional surgeries and a 6-week coma.  These injuries will require medical care for the rest of her life.

In deciding that the doctor was negligent, the jury awarded $3.24 million for the patient’s medical expenses and awarded $300,000 to her husband for loss of consortium.  The biggest part of the jury’s award was $4 million in “non-economic damages” – disfigurement, permanent injury, pain and suffering.

Given the amount of the award, the jury obviously thought the woman’s non-economic damages – particularly pain and suffering – were the greatest part of the woman’s injuries at the hands of the doctor.  However, the jury was never told that this portion of its award is blocked by a tort reform law that the North Carolina General Assembly passed in 2011.

This law caps noneconomic damages at $500,000.  Therefore, even though the jury said the patient is due more, this woman will receive $500,000 rather than the $4 million awarded by the jury.  This law also eliminates the $300,000 awarded to the husband for loss of consortium.

This North Carolina law capping noneconomic damages in a medical malpractice lawsuit came from a push for “tort reform.”  The insurance industry and the medical community promised that making it harder for victims to file medical malpractice lawsuits would reduce the number of “frivolous” suits that “clog the courts”; that imposing caps on the damages would reign in “out of control” juries; and that malpractice insurance premiums would fall, thereby reversing a doctor shortage.  More than half the states in the United States have implemented tort reform by way of capping monetary damages, reducing the amount of time victims had to discover and bring a lawsuit, and even limiting the amount of money lawyers can be paid for representing clients.

None of these promised benefits have become reality – mainly because the alleged problems did not exist in the first place.  In terms of damages, the Department of Justice found that the median award by a jury in medical malpractice cases was $400,000, compared to $631,000 awarded in bench trials, which are decided by the judge rather than the jury.  Judges actually awarded more in these cases, but legislators have been convinced that juries cannot be trusted to stay within reasonable bounds in their awards to plaintiffs.  The legislators have taken this control away from the jury, but the jurors are never told.

In 1999, the Institute of Medicine concluded that between 44,000 and 98,000 patients are killed in hospitals each year due to medical errors. Many more are injured.  That number – which is more than automobile and workplace accidents combined – does not include deaths in doctors’ offices or clinics  – such as outpatient or surgical clinics. In 2011, a study in Health Affairs estimated the number of avoidable deaths was probably closer to one million.  However, several studies have found that only about 1 in 10 cases of serious medical negligence ever result in any legal action being brought on behalf of the injured party.

Tort reformers have been successful in keeping victims from seeking justice. It is time for legislators to recognize that tort reform has not worked and to look for real solutions to make patients safer.   It is also time to put control back in the hands of the jury which hears all of the evidence.

Written by Jean Sutton Martin of the Law Office of Jean Sutton Martin PLLC.  Attorney Jean Sutton Martin provides focused, personalized legal solutions for people who have been harmed by pharmaceutical drugs and medical devices.