96 N.C. L. Rev. 512 (2018)
In its most general form, “[t]ort reform . . . refers to legislative proposals or enactments that modify the common law rules of torts.” However, in recent years, tort reform has taken on a more politically charged meaning, manifesting itself through “legislation to limit, or ‘cap,’ damages awarded to plaintiffs in malpractice cases.” Tort reform has been a controversial topic for decades, particularly within the context of medical malpractice litigation. Proponents of tort reform point to an increase in frivolous lawsuits, runaway jury verdicts, malpractice insurance premiums, and healthcare costs. Furthermore, proponents cite an uptick in the practice of defensive medicine, which occurs when doctors recommend unnecessary medical tests and procedures to minimize the risk of malpractice litigation. Such proponents have described tort reform as “passing laws to deter outrageous jury verdicts and windfall recoveries to undeserving parties.” Conversely, critics argue that these concerns are not as drastic as proponents claim and instead focus on the impact that tort reform has on plaintiffs’ abilities to bring legitimate lawsuits. Regardless of which side is “right” about tort reform, the clear trend has been for states to pass laws making it more difficult for plaintiffs to obtain large jury awards in medical malpractice and personal injury cases. This legislation has often taken the form of noneconomic damages caps, which statutorily limit the amount of money a jury may award a successful plaintiff for subjective damage calculations, such as pain and suffering. In contrast, economic damages include compensation for objectively verifiable monetary losses, such as past and future medical expenses and wages.
These reforms have resulted in the systematic devaluation of certain groups of plaintiffs—namely lower-income plaintiffs—as lawyers are forced to consider the likelihood of recovering significant economic damages as the barometer for a successful claim. When noneconomic damages are capped, the chance of a plaintiff receiving a large jury verdict is increasingly dependent on the economic damages available. Therefore, if two plaintiffs—one a Silicon Valley executive and one a stay-at-home mother—present factually identical cases, an attorney has far more incentive to represent the executive who may be able to receive millions of dollars in lost wages and future earnings, as opposed to the unemployed individual who stands to win very little in the way of economic damages. These facts presented themselves in a California medical malpractice claim, resulting in a $2 million settlement for the executive and a $300,000 settlement for the stay-at-home mother.
North Carolina joined this national trend when the General Assembly passed a series of tort reform bills in June and July of 2011, drastically altering the landscape of medical malpractice law in the state. These reforms collectively comprise a series of procedural, evidentiary, and substantive changes to North Carolina’s preexisting medical malpractice law, making it more difficult for plaintiffs to bring successful medical malpractice claims at nearly every phase of litigation.