Interesting medical malpractice reform bill passed in the North Carolina Senate just before Hurricane Isabel (which is about to take out my power now) hit --supported by Democrats and opposed by Republicans. "Pretrial reviews in malpractice cases would come from a three-member panel appointed by a judge but with input from lawyers in the case. Panel recommendations would be entered into evidence, and a plaintiff or defendant who took a case to court despite a negative recommendation and still lost would have to pay attorney fees to the opposing side." Insurers and Republicans seem to be unhappy with the creation of a state insurance fund, increased reporting requirements for insurers, and the lack of a damages cap. (Scott Mooneyham, AP, Sep. 16; "AIA: NC. Senate Med-Mal Bill Lacking", Insurance Journal, Sep. 18). "A special House committee will consider the medical liability issues, but the full House will not act on any measure before May." (Matthew Eisley, "Malpractice changes offered", The News & Observer, Sep. 17). Game theory scholars will be interested to note that the bill requires juries who find negligence to choose between a plaintiff's proposed damages figure and a defendant's proposed damages figure -- what is sometimes called "baseball arbitration." This effectively constrains rational trial attorneys to perform a balancing act and make reasonable requests -- the higher the demand (or the lower the counter), the more reluctant a jury to go along. This alone should encourage settlements by narrowing the difference between parties. In conjunction with what will likely be a persuasive pre-trial panel expert report, it is hard to imagine circumstances when attorneys would ever let a case get to a jury verdict.
(Cross-posted from Overlawyered, where it ran Sept. 18, 2003)