Don’t tell any of my fellow plaintiff attorneys, but over the years I have thought that some caps on damages would be a good idea. Insurance companies and businesses have to plan for risk. It is hard to plan when you could get hit for a very large verdict. So, I thought, perhaps we could just put an top cap on a verdict for example at $5 million dollars. That would give some outside risk parameters for defendants.
The reason for this cap is not what insurance companies claim. First, doctors are not leaving this state. I literally laugh when I read that. In NC, the number of doctors has increased every year far more than the general population increased. Just Google it, there is no doubt that it is true, we have more doctors than ever.
Second, insurance premiums are not going up because of “lawsuit abuse” in NC. In NC, we have one of the lowest insurance premium rate increases for doctors in the nation. At the same time, there have been fewer lawsuits almost every year. NC has a law called 9(j) that requires all lawsuits to be reviewed by a doctor to make sure it is valid before it is filed. Doctors don’t sign off on just anything. Also, the verdicts are not millions of dollars, in NC it is around $300,000 verdict size. Having said this, don’t be fooled into thinking lawsuits really affect premiums. Insurance companies invest in the stock market with premiums. When they lose money, they pass it on to us. Just look at Texas, which has had “Tort Reform” passed and put caps on damages- their premiums have actually gone up faster than in NC. I want to laugh at that too, but that part just makes me angry. Insurance companies blame lawsuits so they can make more money by raising premiums.
The reason that I started thinking about all of this, is that the NC legislature is considering passing a cap of $250,000 on non-economic damages. This was so low that it caused an uproar in the legal community. We all started researching the issues discussed above, and looked closer at the actual problem of medical mistakes. Almost every doctor that I have ever met or deposed is trying to do the right thing. They care about their work. They care about their patients. However, there are a few that are just plain awful. These few cause terrible harm to many people.
The New England Journal of Medicine actually studied medical mistakes in NC in an in depth article. Here is just one quote from that article: “About 18 percent of patients were harmed by medical care, some more than once, and 63.1 percent of the injuries were judged to be preventable.” That is a huge number, 1 out of 5 patients. Most of this is hidden from the public. Whenever there is a settlement, the insurance companies make everyone sign iron tight confidentiality agreements. The make lawyers sign it. However, the New England Journal of Medicine is probably the most respected medical publication in the United States. It is a doctors’ publication. Their findings are shocking.
After considering all of the above, I am not as open to caps on damages anymore. While I do want to contain risk for insurance companies and doctors, I had no idea that the risk was so big to all of us. One doctor who’s wife was terribly injured by medical negligence wrote this, “They didn’t put a cap on the suffering that my wife had to endure and will endure for the rest of her life. Why should they get a cap on their responsibility for it?” Good question. Ultimately, our jury system has worked for hundreds of years, and our nation was founded on this system. I would rather trust a jury of my neighbors than I would the government or insurance companies to value my case. I am no longer willing to consider losing my constitutional right to a jury trial to help insurance companies.