Medical Malpractice Reform Fails in New York

Yesterday, budget negotiations between the Governor and legislative leaders failed with respect to reforming New York’s medical malpractice laws. This leaves thousands of people without attorneys who may have legitimate claims for malpractice, but no one to investigate them.

New York has some of the lowest medical malpractice legal fees in the nation. As a result of mid-80’s legislation, countless people who have been harmed by malpractice over the years have been unable to obtain representation. But reform of that law, that was part of the budget negotiations just concluded, failed according to a source I spoke with earlier today.

Unlike most negligence cases, where the top legal fee 1/3 of the recovery, malpractice legal fees are substantially lower. New York’s “sliding scale” fee structure looks like this:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered. 

Thus, while malpractice cases are significantly more difficult to bring, and cost a great deal more (due to the necessity of hiring additional experts), the fees are lower than in other personal injury matters. Essentially, the lower fees, greater expense and significant technical difficulty of bringing such suits have given de facto immunity to the medical profession for many claims.

The New York Post, in an opinion column last week, claimed such a change in the legal fee structure was a “bonanza” to lawyers. The piece by Post columnist Fredric U. Dicker claimed that there would be “windfall” earnings to lawyers, evidence that he really doesn’t have much clue as to what he is writing about. He clearly knows nothing of the actual economics of bringing a malpractice claim and proving it, or that they rarely settle easily. Nor does he appear aware the largest cases almost always need to have any fee approved by a judge.

While I’ve never met him, I have no doubt Dicker would change his tune in a hear beat if he was the one who was injured by the negligence of others, just like these other people. He also probably doesn’t know that the medical malpractice “crisis” has been debunked as a hoax (and yet more here) and probably doesn’t know why malpractice premiums for New York doctors jumped dramatically recently. He might, perhaps, be interested in the price gouging by some medical malpractice insurers, or how malpractice gets covered up, or even about the White Coat of Silence, but he would only be interested if he had an open mind.

Dicker didn’t report that most malpractice victims are without recourse and forced to bear all of the loss. Time and again I receive phone calls from people desperately trying to find counsel, and learn that I am but one attorney in a long list that has rejected the matter simply because of the economics of the matter.

Once upon a time in America we believed that people should be held responsible and fix their mistakes. But the right wing Post has apparently dropped that in favor of political partisanship.

If medical practitioners want to put malpractice lawyers out of business, there is a way to do it. But it isn’t by victimizing the patient a second time.

More on the subject at Point of Law supporting the Post editorial.