New York Personal Injury Law Blog » tort reform


January 1st, 2008

You Call That A Tort "Reform" Survey???

Most people with a modicum of intelligence know that a survey’s results are only as good as the questions that are asked. Rigging survey results is easy. The question here: Did Republican New York State Senator Stephen Saland give his constituents a deliberately rigged survey, or inadvertently screw up?

Here is the question that came out of a previously unpublished survey that I received via email from a constituent:

Would you support limiting medical malpractice law suits in order to decrease health care costs?

The problem with the survey question should be self-evident, but if it isn’t to you, I’ll spell it out: Medical malpractice suits are a tiny part of health care costs, so closing the court house door to people, like they do in California, will have no effect. Thus, the question asks you to assume as true its faulty premise.

Should you take my word for it without data? Nope. So let’s open up a copy of the recent report by Public Citizen that they put out in response to New York’s self-inflicted medical malpractice insurance “crisis.” In it, Public Citizen notes (with citation to authorities at pp. 6-7) that:

The sum of medical malpractice payments made by New York’s doctors in 2004 was
$765.8 million, accounting for only 0.61 percent of the $126.1 billion New Yorkers spent on health care that year (the most recent year for which such costs are available). Medical malpractice payments were no more than 0.77 percent of New York’s overall health care costs in any year since 1991.

With such a small sliver of health care costs being devoted to malpractice payments, it is foolish to assume that limiting malpractice suits will lower health care costs. It won’t happen. Worse still, a grant of some type of immunity or protection to a person that negligently injures another would shift the burden from that person to the injured and ultimateley to the taxpayer. That happens when the injured person starts consuming tax dollars from Medicaid and ending their tax payments from work due to their disability. Why a person that believes in limiting government, as Senator Saland presumably believes based on his Republican credentials, would want to provide governmental immunity/protection to a tortfeasor, escapes me.

So the question is, did Senator Saland submit a rigged question to his constituents on purpose, or was it inadvertent?

One way to know is to look at the other questions he asked. Here are a few that I cherry picked from the 12 that were asked:

  • Would an additional tax incentive for energy efficient cars and home heating sources encourage you to switch to using alternative energy?
  • Do you support legislation to make same sex marriages legal in New York?
  • Do you support the legalization of medical marijuana if it is prescribed by a doctor for seriously ill patients?

These look like fine inquiries. Since most of the questions on the form look like legitimate inquiries to constituents, even if some are imperfectly phrased, I think the questionnaire was likely done in good faith.

But how did such an obviously awful question about tort “reform” get included? I have to assume it is simply a lack of knowledge on the Senator’s part, that is no doubt encouraged by the medical industry and the insurance companies. I can see no other explanation.

I finish here by saying I’ve never met the Senator, and have no idea what his record is on closing the courthouse door to those that are injured, but I’m a glass-is-half-full kind of guy, so I give him (and everyone else) the benefit of the doubt unless I’ve been given a darn good reason to assume otherwise. I therefore assume the question was written out of ignorance, not as a political ploy of sending out a rigged question.

But it also means that if this Senator is under the mistaken impression that limiting medical malpractice suits will decrease health care costs, then so too are others.

(Eric Turkewitz is a personal injury attorney in New York)

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