Some suggestions:

The House Select Committee on Tort Reform will be considering amendments to HB 542 at their next meeting on Thursday, April 7, 2011 at 11:00 AM. As of right now, there will be no more public input. Those opposing this bill were allowed 8 minutes to speak on the amnesty provision.

If your Representative is a member of the Select Committee on Tort Reform, now is the time to contact them and express your opposition for HB 542. The action you take today will have a great impact on the final outcome of this legislation. If you don’t want NC to be the most dangerous state in the nation, call now.

 The Bill was filed, all of 18 hours before it was debated. House Bill 542

Here is the relevant language: 

No manufacturer or seller shall be held liable in any product liability action if:

1. The product alleged to have caused harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency, where the approval, license or similar determination is relevant to the event or risk allegedly causing the harm; or

2. The product was in compliance with a statute of this State or the United States, …where the stature or agency action is relevant to the event or risk allegedly causing harm….

This is HUGE.

This means that a product regulated by ANY state or Federal agency would be immune from suit by North Carolina citizens who are hurt or maimed by the product which is eventually found defective.

Think: bad tires, bad cars, Vioxx, bad drugs, toys containing lead or poison, etc.

Here is a “short” list of products whose manufacturers would be immune from a law suit if that product killed you or hurt you or someone you love.

Manufacturers of 328 Types of Products regulated and approved by the US Agencies will receive IMMUNITY from law suits for defective products that maim, kill and destroy property and people.

The manufactures of defective products would receive immunity from suit because the agency is “vested with the authority of this State or of the United States to issue rules, regulations, orders, or standards, concerning the design, manufacture, packaging, labeling, or advertising of a product or a service.” Tort Reform for Citizens and Businesses: Section 3.1(b) amendment to Chapter 99B-1 (1a)

US Consumer Product Safety Commission (USCPSC) Regulated Products

Acetaminophen (products containing)

Acetic acid (products containing)

Adhesives -containing methyl alcohol

Adhesives -extremely flammable contact

Adhesives -floor covering

Adhesives nitrocellulose base

Aerosols (see self-pressurized products)

Ammonia, ammonia water (products containing) household, ammonium hydroxide

Antennas – CB base station and TV

Antennas -Omnidirectional CB base station

Antifreeze, ethylene glycol

Antiquing kits

Appliances, coal and wood-burning

Architectural glazing materials

Art Materials

Artist’s paints

Asbestos- containing patching compounds

Asbestos -containing garments for general use

Aspirin products

Baby bouncers & walkers

Balloons, plastic mixtures

Batteries, storage, wet-cell

Benzene paint solvents containing

Bicycles

Bicycle helmets

Biological specimens, preserved

Blasting caps

Bunk Beds

Butane in cigarette lighters

Carbolic acid (phenol) (products containing)

Carbon tetrachloride (products containing)

Carpets and rugs (large)

Carpets and rugs (small)

Caustic poisons (products containing)

Caustic poisons – potash (products containing)

Caustic poisons – soda (products containing)

Cellulose insulation

Cellulose sponges

Charcoal briquettes

Chemistry sets

Child-resistant packaging (see special packaging)

Chlorofluorocarbons, self pressurized products containing Acetonitrile (see glue remover)

Aluminized polyester film kite

Asbestos -containing artificial emberizing materials

Benzene (products containing) benzol

Bergamot oil (products containing)

Betamethasone (products containing)

Children’s Products (see “Toys/Children’s Products”)

Cigarette lighters

Cleaning products

Clothing (see wearing apparel, sleepwear)

Coal burning appliances (see appliances)

Combustible hazardous substances

Conjugated estrogen tablets (products containing)

Consumer product

Containers consumer-owned (portable)

Controlled drugs (products containing)

Corrosive substances (products containing)

Cosmetics

Cribs -full size

Cribs -non-full size

Cushions, infant

Cyanide salts (products containing)

Dietary supplements, iron-containing (products containing)

Disclaimer deceptive use of

Dive Sticks

Drain cleaners, liquid

Drugs, Oral Prescription -All Exceptions

Drugs -controlled

Drugs -iron containing

Drugs -oral prescription

Drugs -over the counter

Dry-cleaning solvents

Epoxy resins

Ethylene glycol (products containing)

Ethylene glycol in felt pads

Exports (noncomplying products)

Extremely flammable contents of self-pressurized containers

Extremely flammable hazardous substances

Extremely flammable solids

Eye irritants (products containing)

Fabrics

Felt-tip marking devices

Cholestyramine, anhydrous (products containing)

Clacker balls

Colestipol (products containing)

Dibucaine (products containing)

Diethylene glycol (products containing)

Diethylenetriamine (products containing)

Diglycidyl ethers (products containing)

Diphenhydramine preparations

Emberizing materials artificial, containing asbestos

Erythromycin ethylsuccinate, Suspension & granules

for suspension (products containing)

Erythromycin ethylsuccinate, tablets (products containing)

Ethanol containing mouthwash

Ethylenediamine (products containing)

Ferrous oxalate (products containing)

Fire extinguishers

Fireworks

First Aid

Flammable contents of self-pressurized containers

Flammable solids (products containing)

Flammable substances (products containing)

Fluoride (products containing)

Food

Formaldehyde (products containing)

Fuel

Furniture painted with lead containing paint

Furniture polish -liquid

Furniture polish -paste

Garage Door Openers- automatic residential

Gasoline

Glazing compounds

Heaters (see appliances)

Highly toxic substances (products containing)

Household substances

Hydrocarbons

Hydrochloric acid (products containing)

Ibuprofen (products containing)

Imported products & importers

Imports

Industrial supplies

Infant cushions

Ink cartridges dry concentrate containers

Ink-marking devices

Insulation, cellulose

Iron preparations

Irritant substances

Kerosene

Kindling & illuminating preparations

Labels

Laboratory chemicals (if educational)

Lacquers

Lawn darts

Lawnmowers power

Fertilizersdry

granular

Fuel kits with diflouro dichloromethane

Glue remover containing acetonitrile (household)

Hartshorn (products containing)

Hypochlorous acid (products containing)

Isobutane in cigarette lighters

Isosorbide dinitrate -prescription sublingual and chewable forms (products containing)

Ketoprofen (products containing)

Kites aluminized polyester film

Lead in paint (products containing)

Lighter fluid, etc. (products containing)

Lunar caustic (silver nitrate) (products containing)

Lye (products containing)

Matchbooks

Matches

Mattresses (cigarette ignition)

Mattresses (open flame ignition)

Methyl alcohol (methanol) (products containing)

Mineral oil in toys (products containing)

Mineral seal oil (products containing)

Mineral spirits (products containing)

Minoxidil (products containing)

Mirrors

Mixtures of hazardous substances

Mouthwash containing ethanol

Multiple hazard substances with

Multipurpose Lighters

Naphtha (products containing)

Neutralizers, Permanent Wave (see Permanent Wave Neutralizers)

Nitric acid (products containing)

Nitroglycerine prescription (products containing)

Oral contraceptives

Orris root powdered (products containing)

Over-the-Counter (OTC) Drugs (see Drugs, Over the Counter)

Oxalic acid and salts (products containing)

Packages, child resistance (see child-resistant packaging)

Packages, sample

Paint (lead in) (products containing)

Paint solvents

Painting kits

Paper items

Patching compounds containing asbestos

Percussion explosives

Lidocaine (products containing)

Loperamide (products containing)

Mebendazole (products containing)

Medroxyprogesterone acetate tablets (products containing)

Methacrylic acid (products containing)

Methylprednisolone (products containing)

Methyl salicylate (products containing)

Naproxen (products containing)

Nitrites (Butyl and Volatile Alkyl)

Norethindrone acetate tablets (products containing)

Pacifiers (see Toys/Children’s Products)

Pancrelipase (products containing)

Paraphenylenediamine (products containing)

Perchloroethylene in visual novelty devices

Petroleum distillates

Photographic color processing kits

Plant foods -dry granular

Poisons, caustic (products containing)

Polishing products

Potassium hydroxide

Prescription Drugs (Oral)

Pressure-generating substances

Propellant devices for model rockets

Radiator cleaners

Radioactive substances

Refrigerator doors

Refuse bins -unstable

Roof coatings

Rope, cord, string, etc.

Rugs see Carpets

Rubber vulcanizing products

Self-pressurized products

Self-pressurized products containing vinyl chloride

Sensitizers (products containing)

Signal words

Sodium hydroxide

Solder kit

Solder paste

Permanent wave neutralizers containing sodium bromate or potassium bromate

Phenol (carbolic acid)

Photodynamic sensitizer

Potash, caustic

Potassium supplements effervescent

(products containing)

Prednisone

Primary irritant

Sacrosidase (sucrase) in a solution of glycerol and water

Salt (sodium chloride)

Self-pressurized products containing chloroflorocarbons

Silver nitrate (lunar caustic)

Sleepwear, children’s, sizes 0-6x & sizes 7-14

Sodium arsenite

Sodium fluoride

Sodium/potassium hydroxide

Special packaging

Spot removers single-use

Spot removing kits

Sponges, cellulose

Swimming pool slides

Tank coatings

Thread, string, twine, etc.

Turpentine (products containing)

Varnish

Video games

Vienna paste (products containing)

Vinyl chloride (products containing)

Solvents (for Paint and other surface coatings)

Stoddard solvent

Stoves, coal & wood burning

Strong sensitizers

Sulfuric acid

Toluene (toluol)

Toxic substances

Toys/Children’s Products- All

Toys/Children’s Products- choking hazard warnings for small parts, balloons, marbles, balls

Toys/Children’s Products- balls, small

Toys/Children’s Products- caps & toy guns producing, impulse-type sound

Toys/Children’s Products- choking incidents

Toys/Children’s Products- clacker balls

Toys/Children’s Products- electrically-operated toys and children’s article

Toys/Children’s Products- games, self-pressurized -hollow plastic toys games

Toys/Children’s Products- marbles

Toys/Children’s Products- mineral oil

Toys/Children’s Products- painted with lead or containing lead

Toys/Children’s Products- pacifiers

Toys/Children’s Products -rattles

Toys/Children’s Products -sharp edges

Toys/Children’s Products -sharp points

Toys/Children’s Products -small parts

Toys/Children’s Products -model rockets

Toys/Children’s Products -model rockets, propellant

Toys/Children’s Products -train smoke

Toys/Children’s Products -use and abuse tests

Toys/Children’s Products -tubes, collapsible metal (labeling)

Toys/Children’s Products -unpackaged hazardous substances (labeling)

Vinyl plastic film

Walker-jumper

Wax containers

Waxes, paste for autos, furniture, floors and shoes

Wearing apparel

Writing instruments

Visual novelty devices -containing perchloroethylene

Volatile flammable materials

Water-repellent mixtures (masonry)

Wood burning appliances

Xylene (xylol)

Federal Drug Administration (FDA) PRODUCTS

Food safety

Tobacco products

Dietary supplements

Prescription and over-the-counter pharmaceutical Drugs

Vaccines

Biopharmaceuticals

Blood transfusions

Gene therapy

Cell and tissue based products

Medical devices

Electromagnetic radiation emitting devices (ERED)

cellular phones

airport baggage screening equipment

television receivers

microwave ovens

tanning booths

laser products

Veterinary products

Cosmetics

Sanitation requirements on interstate travel

Control of disease on products

Sperm donation for assisted reproduction

United States Department of Agriculture (USDA) Regulated Products

Meat

Poultry

Egg products

National Highway Traffic Safety Administration (NHTSA) Regulated Products

Vehicle safety

Vehicle recalls

Child safety seats

Airbags

Safe auto parts

Tire safety

Steering components

Fuel system components

Accelerator controls

Wheels that crack or break

Engine cooling fan blades that break

Windshield wiper assemblies that fail

Seats and/or seat backs that fail

Critical vehicle components that break

Wiring system problems that result in a fire

Car ramps or jacks that may collapse

Air bags that deploy incorrectly

Child safety seats that contain defective safety belts

___________________________________________________________________

HIGH COSTS TO STATES

No other state in the Nation has a law like this. The only state that is close is Michigan, which has a provision that deals only with immunity for Drug Manufacturers who receive FDA approval. Other states have had lesser versions of this bill but none had given complete immunity. This is an interesting history of “FDA defense” bills: http://www.centerjd.org/archives/studies/MIDrugImmunityF.pdf

As a result of Michigan’s “FDA Law”, the State of Michigan lost $82 MIllion dollars in “refunds” from the manufacturer of Vioxx who was accused of falsifying safety records to the FDA.

One of the reasons Michigan passed the law in 1995 was to attempt to keep Merck and Pfizer as empoloyers in the state. Michigan passed the law and Merck left anyhow. also In 2007, Pfizer announced plans to completely close the Ann Arbor, Nagoya and Amboise Research facilities by the end of 2008, eliminating 2,160 jobs and idling the $300-million dollar Michigan facility.

Can North Carolina afford to give a pass on the safety of all of these items?

Vioxx cost Michigan $82 million in additional Medicaid costs. Michigan can’t recover those damages from Merck because of the “FDA defense.” If this bill is enacted, NC Medicaid and NC taxpayers will also be left holding the bag. The Michigan Court of Appeals affirmed this “defense” on March 11, 2011.

These questions need to be asked: 

WHY DOES THE LEGISLATURE WANT TO MAKE NC THE DUMPING GROUND FOR DANGEROUS AND DEFECTIVE PRODUCTS, WITHOUT CREATING A SINGLE JOB? 

WHY WOULD THE LEGISLATURE LEGALIZE THE SALE OF DANGEROUS DRUGS?

HOW DID NC GET THIS PROPOSED LAW?

How did this “law” get to North Carolina? It got here from ALEC, the “American Legislative Exchange Counsel” a libertarian and conservative think tank funded by big industry with their goal of protecting corporate interests from any safety regulation.

Who funds ALEC? If you go to the link you will find a long list of manufacturers, drug makers, industrial polluters, and other “mega corporations”.

WHAT CAN I DO?? IF YOU DON’T THINK THIS IS A GOOD IDEA FOR NC, PLEASE CONTACT ANY MEMBER OF THE HOUSE SELECT COMMITTEE ON TORT REFORM:

You can find them at NC House Select Committee on Tort Reform. Or here: http://www.ncga.state.nc.us/gascripts/Committees/Committees.asp?sAction=ViewCommittee&sActionDetails=House%20Select_127

Send them an email or a letter. Or give them a call. They meet tomorrow (Thursday, March 31) at 11 am. Act now, before it is too late.

Chris Nichols

Here is the language from the proposed law:

In any medical malpractice action arising out of the furnishing or the failure to furnish services pursuant to obligations imposed by 42 U.S.C. § 1395dd for an emergency medical condition as defined in 42 U.S.C. § 1395dd(e)(1), the defendant health care provider shall not be liable for the payment of damages unless the trier of fact finds by the greater weight of the evidence that the health care provider’s deviation from the standard of care required under subsection (a) of this section constituted gross negligence, wanton conduct, or intentional wrongdoing. Nothing in this subsection shall be construed to change, alter, override, or otherwise affect the provisions of G.S. 90-21.14, 90-21.15, 90-21.16, or 20-166.”

42 U.S.C. § 1395dd is EMTALA , the Emergency Medical Treatment and Active Labor Act, and it says:

(b) Necessary stabilizing treatment for emergency medical conditions and labor (1) In general

If any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either—

(A) within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or

(B) for transfer of the individual to another medical facility in accordance with subsection (c) of this section.

(e) Definitions

In this section:

(1) The term “emergency medical condition” means—

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions—

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

Legal Slight of Hand

It certainly looks like the lobbyists for the medical community knew exactly what they were doing when they crafted this portion of the proposed law. The EMTALA definition is a little bit “loosey goosey” (mostly because it was intended as a way to be broad and make sure hospitals did not “dump” people who were uninsured in the middle of giving birth).

Because of this broad definition of emergency, and because our statute integrates that definition, most people undergoing any serious treatment in a hospital: delivering a baby, having a heart attack, bleeding profusely, etc, will be defined by EMTALA as being “in an Emergency” and thus, ANYONE treating them will have IMMUNITY.

I think the legal inquiry will be:

“When the alleged negligence took place, could the patient have been transferred to another facility pursuant to EMTALA?”

If yes—> no immunity
If no —-> Emergency under EMTALA = Immunity

Do you want just about every Obstetrician to have immunity if they make an error?

Also, because this “definitional slight of hand” is not as obvious as saying “doctors delivering babies have immunity” will the Medical Malpractice Insurance Companies use this “gray area” to say “Well, the Legislature didn’t give you outright immunity, so we can’t lower the insurance rates of OBGYNs because we don’t actually know if the immunity applies. We’d have to look at it on a case by case basis.”?

Bingo! The doctors will raise an “EMTALA Immunity Defense” in EVERY case, creating a cottage industry for Insurance Defense Lawyers to bill hundreds of thousands of dollars, the Medical Malpractice Carriers will continue to charge too much money to the Doctors while enjoying the “Immunity Defense” that will probably kill most claims, and the babies who are born maimed or injured or die- well, they will have no right to a jury trial.

Please contact a member of the Committee and voice your opinion on HB 542. Say no to IMMUNITY!

NC House Select Commitee on Tort Reform Contact Information