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What Albany’s Tort “Reform” Push Ignores: Facts

Posted by Andrew J. Barovick | Mar 11, 2011 | 0 Comments

In the debate on how to control the rising cost of healthcare, and legal costs associated with it, facts have never stood in the way of many supporters of tort “reform.”  But it is particularly galling when that approach is used against the most defenseless of all of us: infants-and particularly those entering the world with neurological setbacks caused by poor medical care.

One of the few medical centers that have made an honest effort to address improving OB/GYN care is NYC's own New York Presbyterian Hospital-Weill Cornell Medical Center.   Here is the result of their study.  What did they achieve?  Two results are stark and undeniable.  The program brought about an unprecedented reduction in serious injury and/or deaths to mothers and infants during labor and delivery.  And the same focus on patient safety brought about a 99% reduction in yearly compensation paid out due to claims of malpractice.

So you might think that it would be a good thing if our legislature made such programs mandatory for New York State hospitals, given the proven record of reducing litigation costs and improving outcomes for mothers and infants.  But that is not what is happening at all.  Instead, hospital lobbyists have proposed a plan that is helpful for their corporations at the expense of neurologically-impaired infants, as well as tax payers across our state.  That's right. You and me.

They propose establishing a Neurologically Impaired Infant Fund (NIIF) to take care of infants injured by medical malpractice.  One key element of this arrangement is that wrongdoers would not be held accountable in a court of law.  Another problem is where the funding for this fund would come from.  There have been vague references to increased taxes of hospitals, but nothing is concrete, in a situation too important for anything less.  This proposed fund, like those being discussed in other states, lacks a dedicated funding source, which will inevitably leave the fund vulnerable to insolvency, jeopardizing the ability of families affected by birth injuries to receive anything close to fair compensation.  And if and when this vague fund is established, and families and their injured infants are shortchanged by such historically inadequate administrative compensation, these families will haven no choice but to turn to Medicaid for care.  Guess what that does?  That's right.  It shifts the burden of caring for these infants to the taxpayers.   That would be you and me.

But the more insidious result of this proposal would be that the source of medical malpractice–negligent MDs and hospitals–would be insulated from their errors and their costs–physical, emotional, and financial.  Why? Because there would no longer be any real incentive to focus on patient safety–the one thing that has been shown to be effective in reducing injuries and costs.  Experts in the field have found time and again that the civil justice system fosters patient safety by holding negligent doctors/hospitals accountable for their mistakes.  The current NIIF proposal removes almost all incentives to stop such mistakes, since wrongdoers would no longer be subject to scrutiny in depositions, and jurors and judges will be deprived of the opportunity to assess their credibility.  Moreover, such programs result in lessening, or stopping outright, institutional reviews of the training of the doctors responsible.  Why would hospitals take on such onerous tasks, when doing so will not affect their bottom lines?

Things might be different if more institutions started patient safety initiatives on their own.  Or if medical associations, hospitals and medical liability insurance companies made real efforts to discipline wayward physicians. But they don't.  That is another unfortunate fact that is being ignored in this debate.

In the end, it all comes down to this.  How do we want to care for the most vulnerable members of our state's population?  How honestly we rise to the challenge will be an important reflection on all of us.

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.