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Article published Feb 18, 2005
Senate passes malpractice cap

Robert W. Dalton
Staff Writer

COLUMBIA -- It took two weeks, a filibuster, a lockdown and finally a compromise, but the state Senate has approved a plan to limit payouts for pain and suffering in medical malpractice lawsuits.Under a deal struck late Wednesday, the Senate capped non-economic damages at $350,000 for injuries suffered at the hands of a physician.In cases with multiple defendants, the awards can be "stacked" for a total maximum award of $1.05 million. For example, a person injured during surgery could collect $350,000 each from the surgeon, anesthesiologist and the hospital involved -- if all three are found to be negligent.The medical community said it needed the cap to reign in skyrocketing malpractice insurance premiums.Sen. Jim Ritchie, R-Spartanburg, said the bill, which received third reading Thursday and now goes to the House, achieved two goals."The first was to provide a stable insurance market for physicians that may result in some discounts in premiums, but more likely stability, to assure affordable access to health care for all South Carolinians," said Ritchie, an attorney."And the other goal was to make sure that there was the opportunity for fair compensation for people who were injured by medical errors."Ritchie said the Joint Underwriting Association, the organization from which most state doctors obtain coverage, indicated that the bill the Senate passed could result in a 6-percent to 10-percent decline in premiums. He's also hopeful that it will encourage other insurance companies to begin writing coverage in South Carolina, something he says could reduce premiums further.The bill does not limit compensation for economic damages -- items such as medical expenses and lost wages. And it does not cap pain and suffering awards when the doctor is determined to have engaged in intentional wrongdoing."We didn't want to protect bad doctors who committed really bad acts," Ritchie said.The original bill called for a $250,000 cap. Opponents said that was too low, leading Sen. Brad Hutto, R-Orangeburg, to launch a filibuster on Tuesday.When several attempts to break the filibuster failed, supporters invoked rule 3B -- which requires all senators to remain in the chamber.Both sides realized that the other wasn't going to go away, and they finally reached an agreement all sides could live with late Wednesday. The amended bill passed by a 45-0 vote."I think overall it's fair and balanced," said Hutto, also an attorney. "The sentiment among every member in there was to help the medical community deal with a problem it's facing."But we had to make sure it wasn't going to prevent a victim from preventing a full case. It the cap was $250,000 it probably would have capped the cases of the most needy."Sen. John Hawkins, R-Spartanburg, also an attorney, said the compromise was the result of a lot of give and take from both sides. He said that the Georgia Legislature's passage of a similar bill earlier this week created a sense of urgency for South Carolina to get something done."It's not a perfect bill, but I think it will result in better patient care and preserve the rights of the injured," Hawkins said. "It spreads the risk out and hopefully will lower premiums and not have doctors practicing defensive medicine so much."Sen. Glenn Reese, D-Boiling Springs, said if the bill doesn't produce the desired results -- lower insurance premiums and better access to care -- the Legislature needs to have the courage to undo any damage it caused."If the rates do drop, then we've solved a big problem," he said.Gov. Mark Sanford praised the Senate for passing the bill. Earlier Wednesday, he said it was essential to keep South Carolina competitive with its neighbors for capital investment and job creation."This is absolutely vital legislation given that our unemployment rate is currently 50 percent higher than Georgia's, and I'd urge the House to get it to my desk as quickly as possible," Sanford said.Robert W. Dalton can be reached at 562-7274 or bob.dalton@shj.com.