Many may have missed a case pending before the North Carolina Court of Appeals, dismissing it as straightforward, albeit heartbreaking, medical malpractice case.

The case is a challenge to a tort reform that was one of the first acts the N.C. General Assembly undertook following the 2011 party leadership change (resulting from the 2010 elections). The medical malpractice action challenges the statutory restriction on noneconomic damages. The plaintiffs claim that the reduction of their jury award for noneconomic damages ($7.5 million) to the statutory cap ($500,000 when adopted, but now indexed up to the $650,000 mark) violates their “inviolable” right to a jury trial under the North Carolina Constitution.

In a tragic course of events, the Plaintiff retained the defendant doctor to assist her with an at home birth. Her pregnancy went beyond 43 weeks and included five days of unsuccessful labor at home. The baby died before delivery, necessitating an emergency C-section so the deceased baby could be removed. The Plaintiff alleges that the defendant, Dr. John David Hayes, advised her as late as the day before the baby died that she did not need to seek out hospital/emergency care, despite a series of opposing indications. Dr. Hayes did not show up for the trial and it does not appear he ever had an attorney assist him in the litigation.

Dr. Hayes’ absence makes this essentially a case with no defendant.  Even though there was no defendant party present at the trial court, the trial court judge still reduced the jury award to the indexed cap, and plaintiffs are predictably challenging that cap on appeal.

Given that the defendant physician never appeared, there was no party set to defend the cap at the Court of Appeals.  The Court’s pro bono program flagged the issue and appointed Martin Warf of Nelson Mullins as “amicus counsel” to defend the trial court’s order.  One of the issues that attorney raised was that this was a constitutional challenge to an act of the N.C. General Assembly, and it had to be presented to the three-judge panel procedure at the trial court level as opposed to coming straight to the Court of Appeals from a single judge review.

The NC Chamber Legal Institute joined a large group of “business amici” in filing a brief supporting the constitutionality of the cap at the Court Of Appeals on October 8, 2024.  That group included the CLI, North Carolina Automobile Dealers Association, NC Farm Bureau, NC Home Builders, and NC Retail Merchants.  Steve Carey from Parker Poe was the author.

At hand is a procedural question about whether the lower court should have sent the question to a three-judge panel, questions about the constitutional boundaries of what the NCGA can do regarding jury trial questions, as well as implications for other acts of the NCGA if the challenge to this one is successful.

This one is worth watching, and that’s exactly what the NC Chamber Legal Institute is doing on your behalf. Stay tuned for what’s next in this case that could have dramatic impacts on North Carolina’s economic competitiveness.