Top Lawyer to Medicaid Redesign Team: End “Litigation Lottery”

By–Scott Hobson

At the October 27th meeting of the Medicaid Redesign Team, Corporation Counsel Michael Cardozo, the head of New York City’s Law Department, offered a list of twelve reforms to fix New York’s medical malpractice system and reduce costs to the Medicaid program.

Mr. Cardozo has been the City’s top lawyer for nearly ten years. Prior to that, he served as president of the New York City Bar Association and was a partner at the law firm of Proskauer Rose.  To say that he is familiar with the problems of our civil justice system would be a considerable understatement.

Tort reform, Cardozo emphasized, is necessary to reign in the rising cost of medical malpractice, citing several deficiencies in the system that incentivized the filing of non-meritorious suits. Last year, New York City paid out over half a billion dollars in lawsuits, of which $143 million went to medical malpractice cases. Statewide, medical liability insurance costs are the highest in the Nation, nearly double that of the next highest state.

One such reform put forward was a limitation on the subjective non-economic “pain and suffering” component of a jury award. These awards, according to Cardozo, “are highly subjective, and often bear no relation to reality.” A limitation on non-economic awards would reduce the number of non-meritorious lawsuits, while preserving a victim’s ability to collect an unlimited amount for current and future expenses such as medical care, lost wages, and adaptive technology. Twenty-two states, including California, Florida, and Texas have enacted similar limits, and the results have been dramatic. In Texas, the enactment of a $250,000 limitation on non-economic damages resulted in $1.4 billion in increased revenues to the state.  In California, medical liability insurance losses are lower than New York by a factor of four.

In addition to other reforms, Cardozo advocated for the statewide expansion of the Judge Directed Negotiation Program currently in place in New York City, as well as requiring a certificate of merit signed by a physician to proceed with a lawsuit. Both these reforms, he emphasized, would reduce the number of non-meritorious lawsuits, reducing costs and allowing those with legitimate claims to receive compensation sooner. Another suggested reform would require plaintiffs to disclose the identity of their witnesses early on in the process, ending the practice of “trial by ambush.” “Litigation,” he said, “is not meant to be a game – it is meant to be a presentation of the facts.”

Cardozo went on to emphasize that the system, as a whole, needed to be reformed. “I suggest that the goals of fairly compensating victims are not being met.” We couldn’t agree more.

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