1. KATE ENCHELMAYER, MS MHSA TORT REFORM

2. OBJECTIVES Understanding what tort reform is How does tort reform apply to health care Tort Reform in North Carolina

3. TORT ACTIONS Civil, common law claims in the English commonwealth system A non-legislative means for compensating wrongs or harms Focus on personal injury

4. TORT REFORM Contentious political issue Advocates propose Limitations on the ability to file claims Capping award damages Supporters of current system argue Reformers misstate the existence of factual issues Reform is corporate welfare

5. TORT REFORM THEMES Economic effects Equality in treatment Limits on noneconomic damages Reduction in the statute of limitations Punitive awards and juries Award for pain and suffering Class action lawsuits Inefficiency of legal system Special medical malpractice courts

6. ECONOMIC EFFECTS The cost of litigation and compensation payouts raise the cost of insurance The cost of the tort system raises the cost of health care Tort liability could stunt innovation

7. EQUALITY IN TREATMENT Someone injured in an accident has an 8% chance of finding someone responsible for their injury If someone else is a fault, fully compensable If injury is by natural accident, disease or by environmental factors there is no compensation and the most that can be gained is simple benefits for incapacity

8. LIMITS ON NONECONOMIC DAMAGES Enacted in some states Places limits on noneconomic damages Limiting payment for pain, suffering, inconvenience, physical impairment Collect lawsuit claim data to assess connection between malpractice settlements and premium rates

9. REDUCTION IN THE STATUTE OF LIMITATIONS Not a limit to the amount of legitimate recovery Reduce the timeframe for bringing suit New York State action must commence Within 2 years 6 months for illness, injury or condition which gave rise to the said act, omission or failure Clock begins with the act, omission, failure or last treatment Within 1 year of the discovery of a foreign object

10. PUNITIVE AWARDS AND JURIES Punitive means ‘punishment’ Exemplary implies ‘make an example’ of the wrongdoer Purpose is twofold Deter wrongful conduct by others Serve as a normative function of expressing social shock or outrage Contrary to public policy Encourage a vindictive, revenge seeking state of mind Rarely awarded in malpractice cases

11. AWARDS FOR PAIN AND SUFFERING Tort compensation easily applies to property damage……replacement value Difficult to quantify injuries to a person’s body and mind Some courts have developed scales of damage awards, but not common in U.S. Quota litis agreements driving up punitive damages

12. CLASS ACTION LAWSUITS Less common in health care Lawsuit on behalf of similarly situated claimants Ensure equal treatment of similarly situated victims Avoid the risk of conflicting judgements on similar issues Allow for the efficient resolution of a large number of claims

13. CLAIMED INEFFICIENCY Tort law generally and medical malpractice specifically serve two purposes Compensate victims for their losses The threat of liability serves to deter future accidents Defense and underwriting costs account for 60% of total malpractice costs (50% of total cost returned to patient) Most people who receive negligent care never receive any compensation (1 in 8 patients) Data is mixed on the cost of health care and malpractice in states implementing tort reform

14. SPECIAL MEDICAL MALPRACTICE COURTS Create specialized medical courts Model exists with tax courts Medically trained judges Proponents Eliminate jury trial Schedules for noneconomic damages (e.g. pain and suffering) More people compensated and compensated sooner Critics Unfair to patients Unlikely to achieve objectives Would be biased towards physicians

15. DISPUTED ISSUES Tort reform is to shield business Limitations on punitive damages reduce accountability Paying a small damage award would have little or no effect in correcting the wrongdoing Small businesses hurt worse by thread of litigation

16. EFFECTS ON SAFETY Consumer advocates and legal scholars contend lawsuits Encourage production of safer products Discourage the selling of dangerous products Encourage more safe and effective medical practices Others argued tot reform saved lives Lower expected liability costs result in lower prices Lower prices enable consumers to buy more Consumers take additional precautions to avoid accidents In the end…..studies end with mixed results

17. FRIVOLOUS LAWSUITS Cannot be reasonably supported under existing legal precedent or under a good-faith argument Only a remote link between the conduct of the defendant and the injuries alleged by the plaintiff Damages sought by the injured are perceived to be too high for the injuries sustained Existing rules allow for a judge who believes the plaintiff has misrepresented the facts or a ‘frivolous’ pleading is brought forward to throw the case out and penalize the attorney A simple review of published opinions demonstrates the court takes these violations of pleading and edical rules seriously

18. HEALTHCARE INDUSTRY Reform advocates argue that the threat of limiting frivolous lawsuits would migrate the industry from practicing defensive medicine Reduce unnecessary tests and procedures Reduce the cost of premiums for physicians malpractice insurance as well as personal and group policy insurance Other research Legal fees, insurance costs, and payouts comes to less than one-half of 1 percent Malpractice pressure makes hospitals more efficient The ‘medical malpractice crisis’ is not necessarily fueled by the growth of malpractice payments but maybe the rising cost of healthcare

19. NC TORT REFORM LEGISLATION ENACTED OCTOBER 1, 2011 Cap on noneconomic damages - $500,000 Applies even if there are multiple defendants An extra layer of financial protection for wrongdoers Exceptions Jury finds defendant’s error to be particularly egregious Plaintiff(s) suffered disfigurement, loss or use of a body part, permanent injury or death

20. NC TORT REFORM (CONTINUED) Immunity for emergency personnel Tougher standards to prove medical malpractice in an emergency situation Plaintiff must prove ‘gross negligence’ when pursuing a malpractice case when care classified as an emergency Applies to Emergency Room and any medical professional acting in an emergency Call to amend to only pertain to ER which have not been made Immunity for medical professionals for life-changing mistakes is not permitted in most states

21. NC TORT REFORM (CONTINUED) Burdens on the victim Separate trials for liability and damages required upon a motion of ‘any’ party Two trials place additional burden on the injured party

22. NO PROMISE OF ANSWERS