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What Tort “Reformers” in NY Don’t Want You to Know

Posted by Andrew J. Barovick | Jan 29, 2010 | 0 Comments

There's been a lot of public hand wringing by the GOP's best spin doctors about those “runaway medical malpractice verdicts,” and their deleterious effects on the cost of healthcare, all done in the name of limiting victims' rights to fair compensation, and helping doctors and hospitals avoid accountability for their errors.

In GOP World, the answer to the problem of “jackpot justice” –surely you've seen all those severely injured plaintiffs who have won law suits riding around in specially-outfitted Rolls Royces–is to impose caps on medical malpractice awards given by juries.  This would inject some much needed common sense into our broken jury trial system, and let doctors get back to the business of helping people, so the rhetoric goes.

And if you are not a lawyer, you might have given a second thought to such histrionics.  But if you are a lawyer, and particularly a New York State lawyer, you know that the tort “reformers” have neglected to fill the rest of the public in on a little secret.  Are you ready for it?  Good.  There is already an effective tool in place in our court system that limits outrageous jury awards, and it works both ways:  lowering the award when it is exessive; and increasing it when it is too paltry.  That tool is actually twofold.  It consists of the common sense of our appellate judiciary, as well as precedents set with regard to the exact issue of compensation.

After any verdict in New York State, any party can move for a reduction, or an increase in the amount of the verdict, based on what is reasonable compensation under all the circumstances.  In Ross v. Mandeville , 45 A.D.3d 755 (2d Dept. 2007), an OB/GYN allowed a medical student to make the incision enabling a C-section to be performed. The student ended up lacerating the forehead of the as-yet-undelivered baby, causing minimal, but permanent scarring.  When the trial jury awarded $200,000 for the infant's past pain and suffering, and $350,000 for future pain and suffering, the defense moved to set aside the verdict as excessive.  The Appellate Division agreed with the defendant, and reduced past pain and suffering to $45,000, and future pain and suffering to $80,000.  It found that the initial damages deviated from “reasonable compensation.”  And they did so by looking to comparative values–that is, what other courts had awarded under similar circumstances.

So much for “runaway verdicts.” And so much for the urgent call for caps on medical malpractice damages, at least here in New York.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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$7.9 million dollars for infant client who suffered severe brain injuries due to post- delivery medical malpractice.

$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

$250,000 to young man whose physician failed to diagnose an impending torsion testicle, causing the loss of the affected testicle.

$200,000 to young mother whose OB/GYN failed to timely diagnose and treat her ectopic pregnancy, resulting in excruciating, long-term pain and the need for surgery to address the ectopic pregnancy once it was diagnosed.