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What’s New in NY Medical Malpractice? Arons Authorizations/Medical Indemnity Fund

Posted by Andrew J. Barovick | May 27, 2011 | 0 Comments

Compensation to families of infants injured at birth due to medical malpractice is about to undergo a big change, but whether or not it's for the better is anybody's guess.  The class of plaintiffs that will be affected is composed of those infants who suffered neurological impairment to the brain or spine during the birth process, and the area of compensation involved is future medical expenses.

At present, if the injured infant's family prevails at a medical malpractice trial, it is awarded, as part of the damages calculus, a sum of money to cover future medical expenses.  That sum is usually the result of calculations performed by an expert economist retained by the plaintiff's family.  As of October 1, 2011, that will change.  Money for future medical expenses will no longer be given to the affected families at the time of the verdict or settlement.  Instead, such families will have to register for a medical indemnity fund managed by New York State, from which they will supposedly receive enough money to properly care for their injured children.  Luckily for us, the workings of this plan have been nicely summarized by attorney Glenn Verchick in the most recent Brooklyn Barrister .

As Mr. Verchick points out, the purpose of the plan is to lower malpractice premiums for hospitals.  And the same hospitals will no longer be saddled with paying for the future medical care that the negligence of their physicians made necessary, since the fund will assume that responsibility.  So, to the extent that such payments contributed to improvements in patient safety, that opportunity has been lost.  And it strikes me as strange that with the wealth of opportunities to legislate improvements in OB/GYN-related patient safety, the bill proposed by Assemblyman Rory Lancman, that would force all NYS hospitals to institute programs mirroring the hugely successful patient-safety program at NY Weill Cornell Medical Center, is not being acted on.

Another development being closely watched by medical malpractice lawyers on both sides of the aisle is legislation that may overturn the Arons v. Jutkowitz case, in which the NY Court of Appeals granted defense lawyers the right to conduct informal, ex parte interviews of plaintiffs' treating physicians, as long as the lawyers obtained the proper HIPAA-compliant authorization ahead of time, and waited until the close of discovery to contact the physicians. Many plaintiff's lawyers were and remain disturbed by the Arons case, for reasons best left to more articulate bloggers like Eric Turkewitz. Suffice it to say that the decision showed a certain naivete on the part of the Court with regard to human behavior, and that it ignored the harm that could accrue toward a plaintiff's case by allowing such an unregulated exercise to take place.  But now there is a bill, also proposed by Assemblyman Rory Lancman, that would effectively r everse the Arons decision . It's nice to see someone looking out for the interests of those injured as a result of medical malpractice now and then.  Let's hope this bill gains some traction.  However, in the political atmosphere that produced a one-sided, State-sponsored Medicaid Redesign Team, utterly lacking in representation by patient-safety interests, I'm not feeling very optimistic.

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.