Anna W. Adler wrote:

In Medical Malpractice Deadlock, Prognosis For Consensus Deal

Specialized medical courts on the table as trial lawyers, doctors aim for compromise
Chris Bragg
Tue, 15 Dec 2009 14:05:00
http://www.nycapitolnews.com/news/126/ARTICLE/1608/2009-12-15.html

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 malpractice insurance system, according to State Sen. Neil Breslin, the chair of the Insurance Committee. In the past two years, state lawmakers have frozen rising medical malpractice insurance premiums because spiraling increases were crippling doctors.

The insurance 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.

“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 injuries.

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.

“That’s a solution that wouldn’t gore anybody’s ox,” Binko said.