For years, liability insurance companies, doctors and hospitals have been attempting to establish “tort reform” in the State of New York. In fact, Governor Cuomo had a provision in his initial budget in 2012 which would have capped non-economic damages in medical malpractice cases at $250,000, regardless of the severity of the injuries suffered by the victims of the malpractice. Fortunately, public interest groups, and bar associations throughout New York State were successful in their efforts to fight off this draconian measure and preserve the legal rights of all New Yorkers to obtain full compensation for all injuries suffered as the result of medical errors of a physician or hospital. Without question, insurance lobbyists, chambers of commerce and physicians’ representatives will keep pushing for these limits, and we who represent victims of medical negligence have to be ever vigilant to fend them off.
To give readers of this post an idea of just how unfair tort reform (we like to call it tort “deform”) is, there is a vivid example from Texas, where ex-President George Bush was once a prime mover in the effort to deprive legitimately injured citizens of their legal rights when seriously injured due to medical malpractice. Connie Spears had a history of blood clots when she was seen at the Christus Santa Rosa Hospital in San Antonio, Texas in 2010, with complaints of severe leg pain. The emergency room doctors at the hospital sent Spears home without conducting sufficient tests or recommending follow up with the correct specialists. Several days later, Ms. Spears was taken by ambulance to a different hospital where doctors found a severe clot and massive damage to the surrounding tissues in her legs. With a now life threatening condition on their hands, the treating doctors were required to amputate both of Ms. Spears’s legs above the knee.
In 2003, Texas lawmakers passed a “tort reform” bill by which the maximum non-economic (essentially pain and suffering) damages a plaintiff could obtain in a medical malpractice case is $250,000. To add more hurdles to victims’ burdens, plaintiffs would now have to prove that the physician or hospital personnel were “willful and wanton” (a virtually impossible standard) –essentially, that they intended to harm the patient, before the person could prevail in a medical malpractice case. Further, and equally egregious, tort reformers in Texas were able to institute a requirement that plaintiffs must procure expert reports from physicians in the same specialty as the defendants within 120 days of filing their cases. If the plaintiff is unable to do so, the plaintiff is responsible for the defendant’s legal fees, even if the doctor was clearly negligent in causing the plaintiff serious injury.
Obviously these requirements place huge obstacles in the way of plaintiffs in finding a lawyer willing to take their cases, and a major threat in the event that experts are not retained within the short time frame required. In Ms. Spears’ case, she underwent substantial difficulty in finding an attorney willing to handle her case, and when she finally did, her expert’s report was deemed insufficient. She now has no legs, and although the hospital did not pursue legal fees against her, the other defendants in the case have. Ms. Spears has lost her retirement savings, and with an unemployed husband, is concerned that they will lose their home to foreclosure.
Insurance companies without conscience blame high premiums on frivolous cases and the volume of medical malpractice cases. However, the truth is that there are already laws on the books which require that in order to file any medical malpractice case in the State of New York, the case must be reviewed by a practicing physician in that specialty who finds that there were departures from good and accepted medical practice. Further, even if a case is filed, if a Court determines that a case was filed frivolously, there is a section in New York’s Civil Practice Law & Rules in which a plaintiff and his or her lawyer can be assessed fines of up to $10,000. Moreover, when cases do go to trial, the percentage of medical malpractice cases which are successful pales in comparison to the cases which are not, due to the benefit of the doubt that many jurors accord doctors in general.
Thus, anyone reading this post who is motivated to do something to prevent the Texas scenario from being implemented in New York, (a cap on medical damages will undoubtedly be foisted on the public again in the near future) contact your local representative, State Senator and Governor Cuomo and tell them “No caps on non-economic damages in New York!”