Before it became state law in 2007, a new method of resolving medical malpractice lawsuits against doctors was hailed as a historic détente between physicians and trial lawyers. But with the system more than a year old, there is no evidence anyone has used it. The two biggest malpractice insurers of North Carolina doctors say none of their clients have gone through the special kind of arbitration, which requires both sides’ consent and caps damages at $1 million. If anyone else has used the law that took effect Jan. 1, 2008, it’s not known among the Western North Carolina lawmakers who pushed for it as a way to cut down on rising insurance costs, or the lawyers and doctors groups whose support cleared the way for passage. Some on each side now blame the other for the law sitting idle. “Every time that I have proposed it, it has been refused,” said Waynesville lawyer Mark Melrose, who represents patients. In about six of his lawsuits, he said, doctors’ lawyers refused arbitration or ruled it out from the beginning. “It’s a total failure,” Melrose said of the law. “And I think the doctors and insurance carriers for doctors knew that it was nothing more than a sort of public-relations ploy to suggest that they were willing to arbitrate these claims.” But Karen Still, claims manager for Georgia-based MAG Mutual Insurance Co., said none of the company’s nearly 3,700 North Carolina doctors have ever been invited to use the arbitration. Nor has the company invited the patients, she said. The roughly 7,000 North Carolina doctors insured by Medical Mutual Insurance Co. haven’t used the process either. David Sousa, the firm’s general counsel, blamed trial lawyers. He said they want more than they can win under the $1 million cap. “There are just no plaintiffs’ lawyers who are going to concede at the outset that their case (isn’t) worth more than what the cap is,” Sousa said.
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