North Carolina legislature to review a bill calling for arbitration of medical negligence claims

North Carolina has introduced legislation aimed at encouraging parties to a medical negligence claim to agree to arbitrate after the dispute arises. The bill would make pre-dispute agreements to arbitrate professional negligence claims void and unenforceable while authorizing post-dispute arbitration agreements. The bill is designed to move parties to medical negligence claims to arbitration, in the hope that it will limit the costs and time of resolving a dispute while still getting a fair result. The bill contains extensive procedures detailing how a medical negligence arbitration based on medical malpractice should be conducted. Both parties could agree at the beginning of the case to use arbitration. This election would be made in the parties' initial pleadings. The parties could also elect to arbitrate later in the case, at any time prior to trial, by filing a stipulation with the court. When the parties do not elect to arbitrate at the outset of the litigation, they each would have to file a declaration with the court stating that their attorneys presented the arbitration option to them, but they rejected it. If the parties decide to arbitrate, they would have to mutually agree on the arbitrator within 45 days after arbitration is elected. If they are unable to agree to an arbitrator by the time specified in the bill, each side could submit the names of three arbitrators to the court, which will select the arbitrator from that list. If no one submits names of potential arbitrators, the court will name the arbitrator. The bill would give arbitrators the flexibility to structure the process, while providing specific procedural guarantees for parties.

The bill would require arbitrators to issue a written award within 14 days of the close of the last hearing. An arbitrator who awards damages to the claimant would be required to make a finding as to whether the claimant suffered serious mental or physical injury as a result of a defendant's professional negligence. Awards would be limited. The bill requires that the losing party would pay the arbitrator’s fees and expenses and the bill would require the arbitrator to review the reasonableness of the attorneys' fees. An award could be overturned only for evident partiality, corruption, misconduct, or if an arbitrator exceeded his or her powers.

The AMCNO strongly supports SB 59 – the mandatory arbitration legislation in Ohio. While the bills noted above differ from the legislation under review in Ohio, it is noteworthy that other states are considering arbitration in lieu of a trial. The AMCNO will continue to push for passage of SB 59 in Ohio. For more information on SB 59 click here