Tort Reform and Forced Sterilization in North Carolina

Torte - Image credit: <a href='http://www.123rf.com/photo_13722428_delicious-slice-of-home-made-sachertorte-cake.html'>digitalsun / 123RF Stock Photo</a>

In 2011 the North Carolina legislature made major changes to the law governing medical malpractice claims. This tort reform, among other things, capped non-economic damages at $500,000.

Such caps on damages do not restrict payments for financial losses, such as future income not earned due to no longer being able to work as a result of injury or death because of something a doctor did, or neglected to do. Rather it limits awards to compensate for such things as pain and suffering.

Physicians in Washington State, and elsewhere, have lobbied for tort reform. Although some physicians have been guilty of gross negligence, in many cases doctors are sued, and juries award large amounts of money, because a patient has suffered, but not necessarily because of something the physician did wrong. Because physicians worry about getting sued, they tend to practice defensive medicine, and order more tests and procedures than necessary as a result. Besides wasting money, it can cause harm. I’ve had patients who have had dozen of CT scans, because every time they go to the emergency room for abdominal pain, they get one to make sure they don’t have such things as appendicitis. The radiation from the CT scan increases the risk of developing cancer in the future. Although such scans are certainly warranted at times, I believe they are excessively ordered because of fear of getting sued.

Between 1929 and 1974, North Carolina forcibly sterilized 7600 people it deemed socially or mentally unfit. Recently the state agreed to set up a $10 million dollar fund to compensate living victims. So far they’ve identified 177, though as of 2010 the State Center for Health Statistics estimated that 2,944 victims may have still been alive. If they end up with 200 such people filing claims, they would each get $50,000. That’s only one tenth of the amount allowed in that state for non-economic damages, and one hundredth if 2000 filed claims, and infinitesimally less in a state that has no such cap. Physicians may be well off, but their pockets are not nearly as deep as a state.

If a physician inadvertently sterilized a patient while treating them for something else, they could be sued for large sums of money for depriving them the chance of procreating. If states can cap non-economic damages for doing the same, isn’t it only fair that limits be placed on non-economic damage for malpractice for physicians who were trying to do the right thing? Although that’s true in about 30 states, the Washington State Supreme Court ruled such caps unconstitutional in Sofie v. Fiberboard Corp., 112 Wn.2d 636 (1989). Although that was not a medical malpractice case, the reasoning goes against the decisions made by a majority of other states, and ignores the fact that resources are limited. No caps in theory means a jury could bankrupt an individual or company, no matter how large, and no matter how many hurt if that happened, all in the name of “justice” to benefit one person, and their legal team of course.

About Daniel Ginsberg, MD, FACP

I'm an internal medicine physician and have avidly applied computers to medicine since 1986, when I wrote my first medically oriented computer programs. So yes, that means I'm at least 35-years-old!
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