In Medical Malpractice Deadlock, Prognosis For Consensus Deal Page 1 of 3
In Medical Malpractice Deadlock, Prognosis For
Specialized medical courts on the table as trial lawyers, doctors aim for compromise
Tue, 15 Dec 2009 14:05:00
When Democrats took over the State Senate last year, many expected an onslaught of legislation that
would liberalize the state’s already liberal medical malpractice laws.
But like the longtime Senate Republican majority, a fractured Democratic conference has continued to
bottle up much of this legislation, with powerful forces like Sen. Carl Kruger, the head of the Finance
Committee, emerging as a champion of the health care industry.
“The medical industry has always been outgunned by the trial lawyers,” Kruger said, referring to
Assembly Speaker Sheldon Silver’s staunch support of the trial lawyers over the years. “They always
get the short end.”
But on an issue which
both sides acknowledge
needs fixing, there may
finally be an opportunity
to reform the medical
system, according to
State Sen. Neil Breslin,
the chair of the
Insurance Committee. In
the past two years, state
lawmakers have frozen
spiraling increases were
companies say that this
has helped put them in deep financial trouble, given that the costs of their payouts to plaintiffs continued
to rise while the premiums paid to them by doctors remain frozen.
Breslin said that the trial lawyers and the insurance industry would now have to compromise to find a
solution to the problem, since neither has the political clout to pass their pet causes without the support
of the other.
In Medical Malpractice Deadlock, Prognosis For Consensus Deal Page 2 of 3
“There’s going to have to be a more comprehensive bill rather than passing these things on their own,”
Breslin said. “There has to be an understanding between the medical profession and the trial bar.”
There does not appear to be much progress between the two sides. Both the trial lawyers and the medical
industry support a handful of bills that the other side opposes, and which have little chance of passing on
their own. The health care industry, for instance, supports a cap of $250,000 on non-economic damages
for plaintiffs. The trial lawyers want to eliminate the two-and-a-half year statute of limitations to sue for
Breslin has pledged to help the two sides hammer out an agreement next year and said that, in private,
both sides seemed more willing to compromise.
“We’re into territory where there’s an understanding that changes have to be made,” he said.
Breslin said he sees several areas where reform would be mutually beneficial. He cited evidence that 25
percent of legitimate personal injury claims go untried because the likely payout is not high enough for
lawyers to take the cases.
He believes the creation of specialized medical courts to try these cases would not only dramatically
lessen legal costs for the medical industry, but also allow trial lawyers to take on more clients, because
their upfront costs would also be reduced by the courts’ greater efficiency.
Susan Waltman, general counsel for the Greater New York Hospital Association, which supports a bill
creating these courts, agreed that this could be an area of common ground.
“Lawyers understand that the only cases they can take on are the very large ones,” she said. “That leaves
a lot of people locked out, since [trial lawyers] have to base their decisions on the severity of the claim,
and not on the negligence.”
New York State Bar Association president Michael Getnick, meanwhile, was also open to the idea.
“If it’s fair to the victims, we would have an open mind with that,” Getnick said.
Richard Binko, president of the New York State Trial Lawyers Association, said the basis of any
compromise would have to begin with measures reducing the number of errors made by doctors, rather
than measures reducing the amounts attorneys or their clients can receive in damages.
Binko argued that doctors have a perverse incentive system, since malpractice insurance premiums paid
by doctors are currently based on their geographic location and specialty, not the quality of their care.
Good doctors ultimately subsidize the errors made by a small minority of bad ones, he said, through the
rapidly increasing malpractice insurance rates.
Putting more money into NYPORTS, a Department of Health program that electronically tracks medical
errors, would be an obvious first step, Binko said.
Through its history, the system has been chronically under-funded, leading to a lack of enforcement of
the program by the State Department of Health and an underreporting of errors by hospitals, especially
those located in New York City.
Increasing funding for the NYPORTS program would help root out the bad doctors—something that
would be in the interest of both the medical industry and the trial lawyers.
In Medical Malpractice Deadlock, Prognosis For Consensus Deal Page 3 of 3
“That’s a solution that wouldn’t gore anybody’s ox,” Binko said.
ABOVE: Doctors from across the state testified at a recent Senate hearing that rising medical
malpractice insurance premiums are driving them out of business.