Introduction:

On July 25, 2011, the North Carolina House of Representatives, by a vote of 74-42, overrode Governor Perdue’s veto of the medical malpractice bill (SB 33). The enactment of SB 33 culminated an intense six-month legislative battle.

When the Act becomes effective on October 1, 2011, a new era of malpractice litigation in North Carolina will begin. Injured patients, who already face formidable barriers, will find it harder to find a lawyer, pursue their claims, and recover adequate compensatory damages. Lawyers and judges will be forced to decipher complex new statutory language.  Courts will confront constitutional challenges to the bill’s most controversial provision, the $500,000 cap on noneconomic damages.

Introduction:

In June 2011, the North Carolina General Assembly enacted HB 542, titled “Tort Reform for Citizens and Businesses.”  Section 1.1 of HB 542 creates a new rule of evidence (Rule 414) that limits evidence of past medical expenses to “the amounts actually paid to satisfy the bills” and “the amounts actually necessary to satisfy the bills that have been incurred but not yet satisfied.”  Section 1.2 amends G.S. § 8-58.1, limiting the plaintiff’s testimony about reasonable medical expenses to the amount “paid or required to be paid in full satisfaction” of the charges. In combination, the new provisions, commonly referred to as “billed v. paid,” will significantly reduce the amount that injured plaintiffs can recover for their medical expenses.  The billed v. paid provisions are effective for all actions “arising on or after” October 1, 2011.

In the past decade, many states have confronted the billed v. paid issue in their appellate courts.  A handful of states have addressed the issue legislatively.  This paper reviews the experience in other jurisdictions, traces the evolution of billed v. paid in North Carolina, and identifies a potential constitutional challenge to the new legislation.

Summary of the Brief:  “Decades ago, North Carolina joined nearly every other state in recognizing that survivors of prenatal medical malpractice can bring negligence claims against the doctors responsible for their injuries and birth defects. … Our courts did not make recovery dependent on a fetus’s gestational age at the time of the negligence.

The question of whether North Carolina’s Wrongful Death Act, N.C.G.S. § 28A-18-2 creates a cause of action for the wrongful death of a nonviable fetus has no relation to claims of common law negligence.  When it is reasonably foreseeable that negligent care could injure a woman’s future child, doctors have the duty to avoid negligently placing the future child at risk of injury.  This duty does not depend on whether a fetus has reached the stage of viability.  Accepting a contrary rule would run counter to North Carolina law, break ranks with every other state, and deny a remedy to injured children who will suffer their entire lives because of avoidable medical negligence.”

In April 1993, Mr. Taylor was wrongfully convicted and sentenced to life in prison for a murder two years earlier which he did not commit.  The Defendants worked in the SBI Crime Lab and wrote a deliberately misleading report about evidence collected from the crime scene.  Because this report misrepresented the facts and the findings of the laboratory tests, Mr. Taylor was convicted of a crime he did not commit and spent the next 17 years in prison.  On February 17, 2011 a three-judge panel unanimously found that Mr. Taylor was innocent of the charge of murder and ordered his immediate release.  Mr. Taylor was given a full Pardon of Innocence by Governor Beverly Perdue on May 21, 2010.

Mr. Taylor’s complaint brings claims under the federal constitution, North Carolina Constitution, and North Carolina common law.  Mr. Taylor is represented by Burton Craige and Narendra Ghosh, as well as Spencer Parris and Christopher Olson at Martin & Jones.

The Supreme Court, in a short per curiam order, concluded that the Industrial Commission failed to make findings on one of the key factual issues: whether the cement area where plaintiff fell was part of defendant-employer’s premises or part of the parking lot.  Accordingly, the Court remanded the case back to the Commission for additional fact-finding.

Burton Craige assisted with the amicus brief filed by the North Carolina Advocates of Justice in this case.

Dail has properly stated cognizable claims for relief arising from his wrongful incarceration. Dail has stated a valid claim for municipal liability under 42 U.S.C. § 1983 and Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978), because Defendants had a policy or practice of failing to properly inventory and safeguard evidence, including the evidence that ultimately exonerated Dail. Defendants’ unconstitutional conduct arbitrarily denied Dail’s liberty interest and resulted in his continued wrongful incarceration. Unlike the plaintiff in District Attorney’s Office for Third Judicial District v. Osborne, 129 S. Ct. 2308 (2009), the principal case upon which Defendants rely, Dail has not impermissibly used § 1983 to seek access to potential evidence, but instead properly invokes § 1983 to redress Defendants’ unconstitutional failure to reasonably maintain evidence.

Dail has also properly brought state law claims for negligence and obstruction of justice, which are not time-barred. Those claims did not accrue until August 27, 2007, when Defendants first notified Dail of the results of the DNA testing, or on August 28, 2007, when Dail was finally released from custody, and thus were timely filed on August 26, 2010. Finally, Dail has stated valid claims under the North Carolina Constitution based on Defendants’ violations of his rights to procedural due process and entitlement to exculpatory evidence.

This case presents weighty issues of constitutional significance in an evolving area of law. Consideration of the merits of the claims asserted in this action should follow development of a full factual record.

More from the opinion below:

The primary question presented in this appeal is whether the district court erred in holding that the contents of a particular letter from defense counsel to counsel for the plaintiffs, as clarified by a follow-up letter from defense counsel thirteen days later, rendered moot the plaintiffs’ claims for unpaid overtime wages in a collective action under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, such that a live case or controversy no longer existed with respect to such claims, requiring their dismissal for lack of subject matter jurisdiction. We answer this question in the affirmative, and therefore, vacate the district court’s dismissal of the plaintiffs’ FLSA claims and remand for further proceedings consistent with this opinion.

In sum, the fact that the Defendants’ offer to settle the Plaintiffs’ FLSA claims (as contained in the letter dated May 16, 2008, and as clarified by the follow-up letter thirteen days later) did not offer for judgment to be entered against the Defendants, was ambiguous as to the amounts of actual and liquidated damages to be recovered, and was conditioned upon an agreement by the Plaintiffs to keep the settlement confidential, prevented the mooting of the Plaintiffs’ FLSA claims. Accordingly, we hold the district court erred by dismissing the Plaintiffs’ FLSA claims for lack of subject matter jurisdiction, vacate the district court’s order dismissing such claims and corresponding judgment, and remand such portion of this action for further proceedings consistent with this opinion. We also vacate the district court’s order denying the Plaintiffs’ motion for conditional collective action certification of their FLSA claims and their amended version of such motion, because the district court denied these motions upon its erroneous belief that the Plaintiffs’ FLSA claims had already been rendered moot. On remand, we direct the district court to reconsider these motions in light of our holding that the May 16, 2008 letter, as clarified by the May 29, 2008 letter, did not render the Plaintiffs’ FLSA claims moot.

Check out the whole article.

Leto will be speaking about employment law issues that workers’ compensation practitioners should be aware of, such as the ADA and FMLA.  Wage and hour issues are also important ones to consider.  As this short paper prepared by Leto and Narendra Ghosh states, “Workers’ compensation practitioners should remain vigilant for potential wage and hour violations as they pursue claims for their clients. When getting information on a client’s average weekly wage, for instance, it is important to at least consider whether your client is getting paid fully, including for overtime, under the wage and hour laws.”

Mr. Dail was arrested on May 13, 1988 for the rape of a 12 year old girl.  He maintained his innocence from the date of his arrest onward and insisted that evidence collected from the crime scene be tested against his DNA.  After Mr. Dail’s conviction, the City of Goldsboro reported that the evidence had been destroyed.  Eventually, in 2007, after repeated requests for this evidence, the Goldsboro Police Department acknowledged that, contrary to their previous representations, they were in fact in possession of the evidence from the crime scene.  The DNA evidence was tested against Mr. Dail’s DNA and he was finally exonerated after 18 years of imprisonment and set free.

Mr. Dail’s complaint brings claims under the federal constitution, North Carolina Constitution, and North Carolina common law.  Mr. Dail is represented by Burton Craige and Narendra Ghosh, as well as Spencer Parris and Christopher Olson at Martin & Jones.