Trial Lawyers Push Dramatic Expansion of Medical Liability

doctor medical lawsuitAs the end of the 2015 legislative session draws near, the personal injury lawyer lobby has engaged in an all-out push to extend New York’s statute of limitations for medical malpractice cases.

Under current law, the statute of limitations for medical malpractice cases is 2.5 years after the act or omission which gave rise to the injury. In cases where there is continuous treatment, cases where an object is left inside a surgical patient, and cases where the patient is a minor, the statute of limitations is “tolled,” meaning the point at which the clock starts is extended.

In a dramatic departure from the existing standard, the personal injury lawyers are pushing for a bill which would start the statute of limitations at the point at which the injury was discovered by the patient. This means that a patient could bring a medical malpractice lawsuit for an injury that happened as long as a decade ago.

That’s very bad news for doctors and hospitals which would face such “stale” claims. Statutes of limitations are designed to balance two important interests – the right of a plaintiff to seek compensation if they are harmed, and the rights of defendants not to be subjected to old claims against which they cannot adequately defend themselves. Think about it – what were you doing on this day ten years ago? What were you wearing? Who did you talk to and exactly what did you say? Now imagine that you are under oath. Oh, and you don’t have any written records because you were only required to keep 2.5 years’ worth on file. It’s easy to see how these types of cases are fertile ground for shakedown lawsuits.

But believe it or not, there’s another, even bigger, danger to this proposal besides the risk defendants won’t get a fair trial. It’s that patients themselves, the very people this bill purports to help, would bear much of the cost.

You probably wouldn’t be surprised to know that New York leads the nation in medical malpractice lawsuit costs, despite the fact that our doctors and hospitals are among the safest in the world. But what is truly surprising is just how bad our system has gotten.

New York now accounts for 20% of all medical malpractice payouts in the entire nation. Two of the three largest medical malpractice insurers are technically insolvent. Despite the fact that our medical malpractice rates are set by the state Department of Financial Services and our insurers have the lowest profit margin in the entire nation, insurance premiums are so high that taxpayers must subsidize them to the tune of over $100 million annually. It’s so bad that some hospitals are now forgoing medical liability insurance entirely, gambling that they will have enough reserves to pay claims. These are huge red flags that our insurance market is failing.

Dramatically lengthening our statute of limitations would cause medical malpractice premiums to explode by as much as 25%. Think of it as the grand piano that broke the camel’s back. And because of the 10-year window, doctors would have to carry insurance for a decade after they retire. For some physicians, medical liability insurance is over $300,000 a year. Do the math. If you were a doctor, would you stay in New York?

Doctors are doing the math, and the answer for many is clear: get out of New York by any means necessary. Some move to Texas or California, others simply retire early. Still others steer clear of high-risk specialties such as obstetrics and surgery. That adds up to a shortage of over 1,000 physicians, as recently calculated by the Healthcare Association of New York State. Between 2008 and 2012, the national average per capita growth in total physician supply was 6.04 per 100,000, yet New York’s per capita supply grew by only 2.3 per 100,000, barely one third the national average. Thirty-seven states performed better than New York, including states that have enacted key tort reforms such as Texas, California, Wisconsin, and Florida.

There’s little debate that higher liability costs will result in service cutbacks and hospital closures, most heavily in obstetrical services. Over a dozen hospitals have stopped providing regular obstetrical services due to liability costs since 1995, and eight upstate counties currently have zero practicing Ob-Gyns. This burden falls disproportionately on women and low income families for whom traveling greater distances for medical care is difficult or impossible.

The personal injury lawyer lobby is chomping at the bit to pass “date of discovery” legislation for one simple reason: it will make lawyers a lot of money. They’ve dumped an astounding amount of money into New York politics– more than ten million dollars in political contributions and lobbying spending since 2006 – and now they’re telling legislators it’s time to kiss the ring.

Is that really what’s best for New York?

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