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How Proposed Legislation Re: Medical Malpractice Will Hurt NYers

Posted by Andrew J. Barovick | Mar 07, 2011 | 0 Comments

Nobody likes to think about the possibility that he or she will become the victim of medical malpractice. But right now, there is more reason than ever to consider that unpleasant scenario.  Because if legislation now under consideration in Albany goes into effect, people who have been harmed by medical negligence will be facing a second round of victimization.

That is because the Medicaid Redesign Team, or MRT, has decided that New Yorkers who have been victimized by substandard medical care  should have their non-economic damages capped at $250,000, if they are successful in bringing a medical malpractice lawsuit.  Non-economic damages are meant to compensate for the irreparable  injuries caused by malpractice that affect one's quality of life.  Typically referred to as damages for pain and suffering, they encompass paralysis, blindness, loss of body part or function and disfigurement, and are meant to compensate you for such a loss for the remainder of the time you live with it.

So, let's say you're a young mother who loses function in her arm after a botched shoulder surgery–something that never should have happened, but for the negligence of your surgeon.  If you were successful at trial, you would be prevented from receiving any compensation over $250,000.  That's how your inability to use your arm for the rest of your life would be valued.  If that injury affected your ability to earn a salary, you could be reimbursed for what is known as “lost earnings.” But if you were not working, or were not earning much, lost earnings damages are a cold comfort.  It is therefore easy to see that such a cap unfairly affects society's most vulnerable–children, the elderly, the poor, minorities and women–who often earn less money and whose injuries are more likely to be based solely in non-economic damages.  And that is how New Yorkers who are victims of medical errors will be victimized twice, if this legislation becomes reality.

And if you've been wondering what any of this has to do with Medicaid–remember the Medicaid Redesign Team–the answer is: nothing.  Unless, of course, you consider the likelihood that under- compensated victims of malpractice will eventually have to turn to Medicaid, thereby increasing the tax burden on all of us, for their healthcare.

Is this really what we want?

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.