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 North Carolina, two other state statutes can come into play.  First is the Controlled Substance Examination Regulation, N.C. Gen. Stat. 95-230 et seq., which specifies some of the required procedures for drug testing.

Second is the statute protecting against workplace discrimination against persons for the lawful use of lawful products, N.C. Gen. Stat. 95-28.2.  Under the law, an employer generally may not discriminate based on an employee’s “lawful use of lawful products if the activity occurs off the premises of the employer during nonworking hours and does not adversely affect the employee’s job performance or the person’s ability to properly fulfill the responsibilities of the position in question or the safety of other employees.”

Introduction: The 2009 Term of the Supreme Court of the United States illustrated in unmistakable fashion the central role that workplace regulation plays in the lives of our citizens. The Court’s determination of a broad range of employment-related issues maintained its focus on employment law that began several terms ago. Not only do this term’s decisions affect a variety of policies and rules applicable to workers, employers and benefit providers, but the Roberts Court’s unabashed interest in doctrinal development, revealed by a deeper look at its decisions, also is reshaping the employment relationship itself and altering how work-related disputes are to be resolved. 

For the first term in nearly a decade, the Court appears to be emerging from the shadow of the September 11, 2001 attack on our nation. To be sure, judicial fallout from the consequences of that assault, including construction of the Patriot Act and the Military Commissions Act and application of habeas corpus, is still noticeable, particularly in detainee disputes, but these cases no longer dominate center stage on the Court’s docket or capture headlines as they did in many of the past several terms. As a consequence, the Court has shown a renewed interest in doctrinal change generally, with a focus on employment law in particular. Most notably, this turn of events coincides with the coalescence of a reformist majority led by Chief Justice Roberts. As Adam Liptak’s recent review of the Roberts’ Court’s first five years points out, Justice Alito’s succession to Justice O’Connor’s seat has moved the Court rightward philosophically, making it (in Liptak’s words) the “most conservative” Court in recent history. The New York Times, July 25, 2010, pp. 1, 20-23. This term’s employment decisions do not contradict Liptak’s assessment. In sum, the spotlight on the employment relationship during the 2009 Term was manifest not only in the employment and labor cases themselves, but also in a variety of non-employment decisions that are likely to have a bearing on workers and employers alike. For employment lawyers, therefore, the 2009 Term was a revealing and consequential one, to say the least.

Continue for details from the opinion:

In their third amended complaint, plaintiffs allege that defendant failed to compensate them for time spent engaged in donning and doffing protective equipment (including, for purposes of this motion, protective clothing) and related activities (collectively “donning and doffing activites”). The specific activities for which they allege they were not compensated include: (1) obtaining their required protective equipment from designated areas in the plant; (2) walking to and from the work station, processing line, or both; (3) donning and doffing protective items and hygiene-related equipment before their shift, during their shift, and after their scheduled shift ends; (4) waiting for a shift to begin or for relief to arrive; (5) washing and cleaning tools and other equipment; and (6) other pre- and post-shift activities required by defendant. Plaintiffs seek unpaid back wages, unpaid benefits, liquidated damages, attorneys’ fees, and other relief.

The FLSA allows for the commencement of an action for unpaid minimum wages and overtime pay against an employer by “any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” … In order to determine if the proposed class is similarly situated at this stage of the proceeding, courts must consider: (1) the factual and employment settings of the individual plaintiffs; (2) whether defendant has presented individualized defenses; and (3) fairness and procedural issues presented.  “Variations in damages . . . do not warrant decertification.”

To be sure, trial of a collective action of this type and magnitude is no small undertaking. But other courts have managed similar litigation involving donning and doffing in the meat and poultry processing industry, and objections on this basis are accordingly unfounded. … For these reasons, a collective action would be a fair and efficient means of resolving plaintiffs’ claims, and this third and final factor therefore favors certification. Because he other two factors do as well, defendant’s motion to decertify the conditionally certified class should be denied.

Of that amount, North Carolina received about $300 million to save teachers’ jobs.  North Carolina leaders are now figuring out when and how to use the money.  Obviously, one possibility would be to use some of the funds to re-hire teachers and teaching assistants who were recently laid off due to budget cuts.  Also, some amount may be saved till next year, when the state’s deficit will reach its highest level.