Sen. Berger’s Greetings from Raleigh


Two bills of considerable public importance were voted upon by the Senate this week.

Senate Bill 33 limits the amount of damages in medical negligence cases for pain and suffering or disfigurement to $500,000 while also providing more protection for emergency room doctors from lawsuits. Senate Bill 114 removes a group of standardized tests from North Carolina Public Schools. Tests required by the federal government will still be in place.

Medical Malpractice Legislation

Senate Bill 33 passed by a 36-13 margin with 5 Democrats joining all 31 Republicans to pass the bill.

I voted no for three reasons. First, I believe the bill goes far beyond its intended purpose to reduce health care costs associated with physicians practicing defensive medicine by protecting physicians who are clearly negligent in providing treatment. Second, emergency room physicians cannot be held accountable for their negligence unless their negligence rises to a willful or purposeful act designed to hurt their patient. Third, capping damages violates the Constitution of North Carolina.

The principal objective of the bill is to reduce healthcare costs resulting from the practice of defensive medicine. Defensive medicine occurs when a healthcare provider recommends a particular procedure such as a CT scan or an MRI out of fear of being sued for medical malpractice. Defensive medicine occurs and it adds unnecessary costs to the health care system. Measures should be taken to protect the reasonable decisions of medical providers in ordering tests and recommending procedures simply to avoid the possibility of being sued. The current version of the bill, however, would protect physicians whose negligence clearly harmed their patient.

The current version of the bill provides almost complete immunity to emergency room physicians. Sen. Josh Stein proposed a compromise to set a fair and reasonable standard of proof needed to find an emergency room doctor negligent. His amendment provides heightened protection to emergency room doctors, but it would not have provided almost complete immunity. If the current bill becomes law, the only type of circumstance where an emergency room physician could be held liable for their negligence will be those acts that are willful in nature such as intentionally performing a surgery while intoxicated. I voted for Senator Stein’s amendment which failed 16-33. Two Republican Senators voted for this amendment.

Sen. Bill Purcell, a Scotland County Democrat and retired pediatrician, introduced an amendment that would exclude from the $500,000 cap, such damages as brain injuries, death and physical impairment. The amendment would have retained the $500,000 cap on pain and suffering. I voted for the amendment which failed 20-29 with two Republican Senators voting in favor of the amendment.

Former Chief Justice of the N.C. Supreme Court I. Beverly Lake Jr., a conservative Republican, wrote the General Assembly a letter stating that allowing a judge to limit the amount of damages a jury can award is unconstitutional. Former Chief Justice Burley Mitchell, a conservative Democrat wrote a letter to the General Assembly arguing that the cap on damages is constitutional.

I have read dozens of letters from families of injured patients, and some of them outline the most horrific circumstances imaginable. One was from a family in Duplin County whose toddler was misdiagnosed resulting in a missed serious viral infection that went septic. In order to save the child’s life, his arms and legs were amputated. Under current law in North Carolina, in awarding actual damages, a jury can look at a person’s anticipated earnings in making a decision. But what are the projected earnings of a child? The current bill allows a jury to make an award of economic damages such as loss of future earning power as well as costs of future medical treatment. In the two cases above, the amount of economic loss would be small and Senate Bill 33 would limit non-economic damages to $500,000. Does that figure justly compensate a child who is without arms and legs?

I believe that public policy that is fair to both physicians and citizens requires a bill that is more carefully constructed to protect physicians and citizens who are harmed by medical negligence.

The bill has passed the Senate and goes to the House for consideration. Click here to read News and Observer coverage of the issue.

End-of-Course Testing

A bill to scrap four end-of-course tests in North Carolina’s public schools was passed 44-5 by the Senate on Thursday. The standardized tests are in U.S. History, Algebra 2, Physical Science and Civics and Economics. They are not required by the federal government to monitor school performance. I voted for the bill.

I taught United States History at Kinston Senior High during the first year this end of course standardized test was piloted for use. Excessive testing forces teachers to teach “to the test” instead of fostering critical thinking by students. I believe that creative approaches to teaching history are impeded by the pressure to pass end-of-grade standardized tests.

I offered an amendment to allow testing when funding by the Race to the Top program was in question. I offered the amendment in response to concerns raised by Pablo Friedmann, an Algebra II teacher from Warren County, who informed Senate leaders that Race to the Top grant money requires standardized testing from year to year in order to determine if students are improving. The amendment did not pass.

Under the Race to the Top program, teachers whose students show demonstrable improvement receive financial bonuses. Friedmann appeared before the Senate Education committee on Wednesday to make a case for keeping the tests. While I ultimately disagreed with Mr. Friedmann and voted to end the tests, I believe he raised valid points that tests do hold teachers accountable to all children by providing a means of comparison of the performances of children from school system to school system.

Judge Howard Manning, who is handling the litigation involving the state takeover of low performing schools, wrote a memo to the General Assembly informing us that these tests were constitutionally required so that the court can insure each child’s constitutional right to a sound basic education The legislation to stop the testing passed the Senate and the House and now goes to the Governor’s desk for signature.

Bill to Thwart Health Care Reform Vetoed

Governor Beverly Perdue this weekend vetoed Senate Bill 2, which was an attempt by the new majority to dismantle national health care reform. I applaud the Governor for her actions and I will vote to sustain her veto.

This legislation could impair North Carolina’s ability to receive federal funds for our children’s health insurance program. This insurance program is available to families who make too much money to qualify for Medicaid and not enough money to purchase health insurance to cover their children.

Governor’s Objections and Veto Message:

“House Bill 2 is unenforceable because it purports to make North Carolina and its citizens exempt from the requirements of the Patient Protection and Affordable Care Act (ACA) passed by Congress. No such exemption exists under the ACA. The Supremacy Clause of the United States Constitution provides that state legislatures cannot enact laws that are—like House Bill 2—contrary to federal law.

“Furthermore, the enactment of House Bill 2 has no bearing on the constitutionality of the federal healthcare mandate contained in the ACA. Twenty-seven states have already filed lawsuits challenging the constitutionality of that mandate. That issue will ultimately be decided by the United States Supreme Court.

“Finally, the Attorney General has identified conflicts between House Bill 2 and existing State law in a number of important areas. According to the Attorney General, House Bill 2 stands to jeopardize North Carolina’s Medicaid program and potentially creates adverse impacts on the Child Health Insurance Program and State laws addressing uninsured motorist coverage and the sale of over-the-counter drugs. The Attorney General has further cautioned that additional unintended consequences resulting from House Bill 2 may come to light, pushing our State into costly and protracted litigation.

“For these reasons, House Bill 2 is inconsistent with my responsibility as Governor to protect the welfare of North Carolina’s citizens.”

Click here to view a copy of House Bill 2.

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As always I welcome your comments on this newsletter or anything else that concerns you. My office is here to help in whatever manner we can. It is an honor to serve as your Senator, and I will do everything in my power to live up to that honor.

Sincerely,

Signature

Doug Berger