New Task Force Takes On the Cap
NCAJ’s Caps Task Force Seeks Ways to Eliminate and Work Around the Caps on Noneconomic Damages in Medical Malpractice Cases
Earlier this year, NCAJ launched the Caps Task Force — a dedicated group of NCAJ members devoted to addressing current legislative caps on noneconomic damages for North Carolinians injured by medical negligence. The current cap of $562,338 adversely impacts injured patients, particularly those who are already vulnerable, including the elderly, individuals who are unemployed or have low incomes and minors. The purpose of this task force is twofold: (1) to eliminate the cap through legislative, appellate and political efforts, and (2) until the cap is removed, to educate and support our members as they continue protecting people, preventing injustice and promoting fairness in the cap era.
N.C. Gen. Stat. § 90-21.19: The Cap on Noneconomic Damages
As part of a broader “malpractice reform” movement that swept across the country, the North Carolina Legislature passed a series of laws in 2011 negatively affecting the area of law surrounding medical negligence litigation. All of these reforms — procedural, evidentiary and substantive in nature — had the intended effect of limiting those injured by medical negligence from pursuing (or recovering full value for) their claims against negligent medical providers.
None of the 2011 tort reform laws has had more of an adverse impact on injured patients than the cap on noneconomic damages — a term that refers to the pain, suffering and disfigurement experienced by injured patients. Codified at N.C. Gen. Stat. § 90-21.19, the cap arbitrarily limits the amount an injured patient can recover in noneconomic damages to $562,338.1 See N.C. Gen. Stat. § 90-21.19(a) (limiting the total amount of noneconomic damages in a medical malpractice action to $500,000 and allowing the Office of State Budget and Management to reset the limit to account for inflation); see also id.§ 90-21.19(c)(2) (defining “noneconomic damages” as “[d]amages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, and any other nonpecuniary compensatory damage”). Except for the exceedingly rare case (see below), all medical malpractice actions are subject to the cap.
In order for an injured patient to avail themselves of the sole exception to the cap, a plaintiff must satisfy two conditions of the cap’s statute. First, the plaintiff must have “suffered disfigurement, loss of use of part of the body, permanent injury or death.” Id. § 90-21.19(b)(1). Second, “[t]he 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.” Id. § 90-21.19(b)(2). The result of this narrow exception is that the majority of medical malpractice claims fall within the purview of the highly restrictive and likely unconstitutional cap.
Prior to its enactment, the cap was widely debated and highly criticized as unconstitutional, and for good reason. Former Chief Justice I. Beverly “Bev” Lake Jr. chastised the Legislature in early 2011 for proposing an “unnecessary” and “unconstitutional” cap on noneconomic damages, claiming persuasively that such a cap would violate the right to trial by jury, guaranteed by Article I, Section 25 of the North Carolina Constitution. According to Lake, as well as our Supreme Court over 150 years ago, “North Carolina citizens have a ‘sacred and inviolable’ right to have a jury determine the amount of compensatory damages, including noneconomic damages, under our Constitution.” See State v. Allen, 48 N.C. 257, 262 (1855) (recognizing “trial by jury is an institution which has been, and must be, cherished by every free people, as the best security for their lives and property, and ought to remain ‘sacred and inviolable’”). Despite Lake’s significant concerns, the North Carolina Legislature moved forward and enacted the cap.
Beyond its constitutional infirmities, the cap is simply bad policy, as it disproportionately affects the most vulnerable members of our society. For instance, an unemployed or low-income victim of medical negligence will likely have little to no lost wages; on top of this, Rule 414 of the North Carolina Rules of Evidence, which was enacted along with the cap, significantly curtails the amount recoverable for medical bills. The result is that for a large class of medical negligence victims (the elderly, unemployed or low-income and minors, among others), their primary recoverable damages are noneconomic damages, thereby rendering their potential claims cost prohibitive.
Indeed, this predictable result has played out across North Carolina over the past decade. As many members of NCAJ can attest and as several studies have shown, the number of medical malpractice claims filed in North Carolina has drastically decreased since the passage of the cap in 2011.2 In addition to limiting the number of medical malpractice cases filed, the cap has also resulted in a dwindling group of attorneys willing to handle these types of claims. Ultimately though, the damage caused by the cap falls most directly on the disadvantaged — a group our organization is dedicated to protecting.
Eleven years have passed since the cap became the law of the land, and NCAJ has been working during those years to both eliminate the cap and mitigate its negative impact on North Carolinians. Given the current political landscape in North Carolina and the makeup of our state appellate courts, legislative changes to eliminate the cap are unlikely to advance in the foreseeable future.
Enter the Caps Task Force
Recognizing that eliminating the cap will be a long-term advocacy endeavor and that in the meantime our members need support to effectively practice, NCAJ has instituted the Caps Task Force. Consisting of over a dozen NCAJ members who regularly practice in the medical malpractice arena, the Caps Task Force is given a dual mandate: (1) to work toward eliminating the cap through all appropriate fronts — legislative, appellate and/or political — and (2) until the cap is removed, to educate and support our members as they practice in the cap age.
The Caps Task Force is tasked with working alongside NCAJ’s grassroots efforts at the legislative and political levels to eliminate the cap. Besides these grassroots efforts, the Caps Task Force will focus on developing winning trial and appellate strategies for invalidating the cap, recognizing this is a long-term goal given the current makeup of our appellate courts.3 To further this goal, the Caps Task Force encourages members who have strong cases to contact NCAJ and the Caps Task Force for guidance and assistance in pursuing these claims.
Given the numerous procedural difficulties of a facial constitutional challenge — for instance, the requirements relating to three-judge panels and necessary parties — the Caps Task Force will also provide a framework for our members to use in challenging the cap, or at the very least, to use as a way to increase potential settlement values. In addition, members of the Caps Task Force will provide assistance to and answer questions from our members who are faced with a cap case or issue.
Beyond assisting with long-term efforts to overturn the cap, the Caps Task Force is dedicated to providing valuable resources to NCAJ members to help them as they navigate the cap climate on a day-to-day basis. The unfortunate reality is that the cap is not going away, and NCAJ and our members must figure out a way to maximize value for our clients’ cases that are subject to the cap.
To that end, the Caps Task Force is organizing an all-day CLE to be held in the fall of 2023, whereby members will receive helpful insight on how to best handle cap cases to ensure maximum value for their clients. Ranging from advice on the inclusion of language challenging the cap in complaints to best practices on pleading around the cap through its sole exception and effective tips on maximizing your cap case in discovery and at mediation, this CLE will guarantee that NCAJ members have the tools they need to powerfully represent their clients’ interests in medical negligence cases. Stay tuned for more updates on the Caps Task Force CLE.
Although the cap is likely here to stay for the near future, NCAJ is committed to supporting our members to maximize their clients’ cap cases, while we continue to work toward a more fair solution for North Carolinians who are injured through medical negligence.
If you have any questions about the Caps Task Force or want to discuss anything cap-related, please feel free to contact me at email@example.com or 919.833.3370.
1 As of January 1, 2020, the limitation on noneconomic damages was updated to $562,338 to account for inflation. See N.C. Office of State Budget and Management, Reset of Liability Limit on Non-Economic Damages for Medical Malpractice (Dec. 17, 2019), www.osbm.nc.gov/media/1018/download. Pursuant to N.C. Gen. Stat. § 90-21.19(a), the Office of State Budget and Management resets the limitation on noneconomic damages every three years to adjust for inflation, and the limitation will reset on January 1, 2023. See N.C. Gen. Stat. § 90-21.19(a).
2 See, e.g., David Donovan, “Latest Data Show State’s Tort Reform Act Delivered a Knock-Down Blow,” N.C. LAW. WKLY. (July 24, 2015), www.nclawyersweekly.com/2015/07/24/latest-data-show-that-states-tort-reform-act-delivered-a-knock-down-blow (indicating a substantial and persistent drop in the number of medical malpractice cases filed in North Carolina since adoption of the cap); see also Eric S. Goodheart, “Two Tiers of Plaintiffs: How North Carolina’s Tort Reform Efforts Discriminate Against Low-Income Plaintiffs,” 96 N.C. L. REV. 512, 528–29 (2018) (discussing same).
3 For instance, similar caps on noneconomic damages have been struck down as unconstitutional in several states. See Estate of McCall v. United States, 134 So.3d 894 (2014) (holding a Florida statutory cap on wrongful death noneconomic damages violated the equal protection clause of the Florida state Constitution); see also Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (2012) (invalidating a Missouri noneconomic damages cap on the grounds that it violated the right to trial by jury set forth in the Missouri state Constitution).