Assembly Set to Spar with Senate, Cuomo Over Malpractice Caps

Monday, March 14, 2011

The State Senate and Assembly are expected to pass their versions of the state budget Tuesday, kicking off budget negotiations in earnest.

One big difference between the two houses is over the Governor Andrew Cuomo's proposal to cap medical malpractice awards.

Doctors and hospitals have been pressuring politicians to limit malpractice awards for years, and now they're close. Cuomo has proposed a $250,000 cap on non-economic damages. Those are the awards associated with "pain and suffering"— not the awards for lost income or for continued medical treatment.

Assembly Democrats said the proposed limit lets doctors and hospitals off the hook and takes away one of consumers' strongest safeguards.

"In our debates on the budget, I would say the vast majority of my Democratic colleagues were adamantly opposed to it and saw it as a real denial of the rights of people who were seriously injured," said Richard Gottfried, Chairman of the Assembly's Health Committee. "But where this will come out in negotiations is anyone's guess."

The Assembly has omitted the proposal from its version of the budget — setting up a showdown with Cuomo, a fellow Democrat, and with Senate Republicans, who favor the cap.

Including the award was crucial to getting support from the medical community for the governor's entire Medicaid Redesign package, which proposed dozens of cuts to trim $2.3 billion from the Medicaid budget. Much of the savings comes from either cutting or freezing medical reimbursement rates or raising taxes and surcharges.

Groups such as the Greater New York Hospital Association and the Hospital Association of New York State have said the malpractice cap is a crucial part of helping them save money by lowering malpractice insurance rates.

Trial lawyers and their allies said many states with damages caps have seen no decrease in malpractice insurance premiums.


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Comments [9]

Mark B.

On one end, I can see the beauty of capping non-economic awards... it brings down medical malpractice insurance rates... ( On the other hand, how can you cap the pain and suffering of someone with a legitimate case? I think it's hard to quantify how much someone in that position deserves financially.

Mar. 24 2011 03:45 PM
moore from bronx

One more thing....what about the ads for FDA approved medicines that have known adverse reactions and lawyers want to sue for "side effects" medicines and procedures have risks!!!!!!!

Mar. 18 2011 02:11 PM
moore from Bronx

As a doc who does home visits to his home bound elderly, one just needs to see television commercials that are broadcasted by attorneys during the day (the TV's are on when I visit) after the other with catchy telephone #'s like "1-800-Sue-them". It is to target people who may be unemployed or unemployable with hopes of them hitting the jackpot. This will not affect economic or future medical care awards. It is saying something that attorneys relish cases in the Bronx because huge awards are given there by a jury pool that is (and I say this non disparaging) poorly educated and poor and may have revenge in their minds. I have had one liability payout to a "career litigant" in a 35 year career and have great difficulty getting malpractice insurance. These cases often settle because insurance companies fear the possibility of "an unreasonable jury verdict by a possibly vengeful jury". Something must be done. Drs leave New is a rare animal to have an Obs Gyn practice in the Bronx. Look to Texas and California for the success of malpractice reform.

Mar. 18 2011 01:59 PM
Thomas Sharon, R.N., M.P.H. from Surfside, Fl

The FDA (Fraud Deception and Abuse) does it again. It received this information as early as November 16, 2009 about the danger of using Wound Vac systems without having a registered nurse in attendance because of the risk of bleeding and loss of electrolytes and did not issue any serious warnings until February 24, 2011. The lethal consequences are insidious and requires close monitoring by competent nursing and medical personnel to prevent death or permanent damage yet the FDA (Fraud Deception and Abuse) failed to protect the public from this safety hazard. The Wound Vac is still being prescribed for and sold to consumers for use at home when this clearly places the patient at risk of death when there is no R.N. in attendance to provide nursing observation and assessment. The FDA is still allowing home use of this device without a nurse in attendance despite that it's warning states, “Patients should be monitored frequently in an appropriate care setting by a trained practitioner, and practitioners should be vigilant for potentially life-threatening complications, such as bleeding, and be prepared to take prompt action if they occur.”

Mar. 17 2011 05:01 PM
Paul Simonson from New York, NY

An artificially imposed cap on damages for those who have meritorious cases is not simply wrong-it is immoral; for, the cap strikes at the very patients who are most deserving- those with proven, often catastrophic injuries.

It can fairly be said that what the doctors and hospitals are seeking is to reduce their costs, albeit in a small way, by slashing the compensation to the victims of their negligence. A just and decent society should not allow this to happen.

Mar. 16 2011 02:58 PM
Paul from nyc

David, The proposed cap is $250,000 total not per party sued.Lose a leg $250,000, lose two legs, $250,000 no matter how many parties are sued. While your concern about receiving care at a reasonable cost is clearly valid, the proposed cap is draconian, no way around it. Presently appeals Courts do limit the amount that can be recovered for pain and suffering on a case by case basis. Taking a one number fits all approach is really unfair. Many patients suffer horrible life altering injuries from medical errors. Many of them are poor or old or people who do not work outside the home. To limit their recocovery to $250,000 for injuries ranging from strokes to brain damage to loss of eyesight or limbs is most definitely draconian. Perhaps you might rethink your position.

Mar. 16 2011 12:09 PM
Larry from NYC and Former Upstater

I am a trial lawyer with 20 years of experience in medical malpractice, both patient and defense.

In practice, it is a very rare case that exceeds $1M for "pain and suffering" i..e all injury to the person that is not wages or medical costs. And, those cases typically involve catastrophic injury, not a "lottery."

And, New York courts, under longstanding precedent, will surely reduce on appeal any grossly excessive award. It is not improbable, but impossible to obtain a "million dollar award" for a lost finger, an unnecessary surgery, or even a permanent disability if not grossly life changing.

Savings from a cap is estimated by all reliable sources (including the bipartisan Congressional Budget Office) at less than 1%. And, a far larger proportion of those dollars in NY State are spent for actual fraud by the billing entities, i.e. the medical profession.

You would save some money from a cap, but far less than than 1% of health care costs, and far less than if you beefed up Medicaid fraud investigations.

The downside of a cap on "non economics" like this is that you would effectively bring almost all malpractice suits on behalf of non wage earners below the threshold of a case that is economically viable even where there is egregious malpractice.

So, the incentive of having someone feeling accountable for Grandma's care will effectively be removed, which would not bode well for careful practice.

Particularly when so much medicine is now technology driven, and team based, it is my humble (and very experienced) opinion that without a "buck stops here" mechanism of civil court oversight, you will see many, many more "excuses" for bad medicine.

Most malpractice attorneys are, in fact, operating very carefully to bring suits of merit. Given the costs of bringing any malpractice case, any lawyer who regularly brought "frivolous" cases would go right out of business.

Attorneys are not "getting rich" by and large, but getting by, by bringing the right cases, of merit, which in fact are quite carefully reviewed by juries --and by appellate courts. We already have a "sliding scale" fee (less than 1/3 in all malpractice cases, with percentages restricted to 10% for larger cases). Also keep in mind that this is the revenue side of a law office only: paying all costs of rent, secretaries, law library, etc.

The point is not "poor lawyers." But we lawyers who actually do this function at a market-driven level of pretty small margins, and in so doing, serve a real function as the private market enforcing patient safety as a priority.

Mar. 16 2011 11:58 AM
David from Scarsdale, NY

People need to choose which is the more fundamental right: the right to receive compassionate care at reasonable cost or the right to sue for "jackpot" type money. Unfortunately we no longer can have both. No one is removing the right to receive compensation for damages, just limiting the "pain and suffering award" to $250,000 per provider. If you sue 4 doctors and 2 hospitals - that's 1.5 million one can still receive in pain and suffering along with the normally inflated estimates of care cost provided to the court if the proposed limits pass. Hardly draconian cuts. The flipside are that obstetrical programs in safety net hospitals can continue to provide quality care to all patients regardless of ability to pay, because otherwise these programs will close! This will lead to a public health emergencies in the Bronx and Brooklyn, placing pregnant women in these communities in peril.
ding onto their right to sue for an unlimited amount of money.

Better quality care requires an appropriate number of physicians and hospitals to meet the needs of the community. Doctors are retiring early and leaving the state due to escalating malpractice. St. Vincents closed. If this continues people will die due to lack of access, and you can't sue the doctor you never saw.

This step helps assure you can see the doctor when you need help, while preserving your right to your day in court. It just prevents you from playing the lottery with a ticket funded by taxpayers to fund commercials for trial lawyers.

Mar. 15 2011 10:26 PM
Patricia from Brooklyn, New York

Governor Cuomo: The reason why I am posting this comment is to ask you to please not support any caps on Medical Malpractice and baby funds. These caps will not stop lawsuits. The reason why most people sue medical facilities is because they want justice for their loved ones who have been harmed in a medical facility. My mother was the victim of extreme negligence in a local facility. Medical facilities must be held accountable for any abuse and negligence that happens to a patient. Putting caps on medical malpractice will only allow these facilities to continue with poor quality medical care that is causing unspeakable pain, suffering and unnecessary deaths. This will increase the amount of lawsuits filed by patients and/or their relatives. The answer is not caps. The answer is better quality care.

Mar. 14 2011 08:17 PM

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