Dear ['Puter], Esq.:
I am writing to urge that you take immediate action. Contact your State legislators and other State policymakers on fast-moving -- and very disturbing -- legislation in Albany.
This is my brief report to you on activity in Albany and on proposals to change the civil justice system under the inappropriate heading of "Medicaid Redesign."
In January, the Governor created the Medicaid Redesign Team ("MRT") to make proposals that would reduce the cost of the State's Medicaid program. The MRT members represent the most prominent and influential interest groups in the healthcare industry, including hospitals, nursing homes, and healthcare workers. Significantly, the MRT included no representatives of the legal profession or anyone else whose primary concern is representing victims of doctors' malpractice.
In mid-February, the MRT released information regarding a large number of proposals being considered to cut billions of dollars from the State's budget. The MRT's goal was to review the list and submit a final, shorter list of proposals to the Governor in March. One of those proposals – Proposal Number 131 (also referred to as the "Medical Malpractice Proposal") – would cap awards for non-economic damages to victims of medical malpractice and create a Neurologically Impaired Infant Fund. (A copy of the proposal may be viewed by clicking on the link above.)
When I learned of this proposal, I immediately met with the State’s Deputy Secretary for Health. I expressed concern over the substance of the Medical Malpractice Proposal. The civil justice system is fundamentally different from the state's Medicaid system. Accordingly, I strongly objected to the fact that “medical malpractice” was a topic of discussion within the MRT's process, because the MRT included no representatives of the legal profession or the court system, and few if any advocates representing consumer rights and patient safety.
Further, I convened an emergency session of the State Bar's Executive Committee, which voted unanimously to oppose the proposal. With the assistance of our Committee on the Tort System, the Executive Committee submitted to the MRT a Memorandum in Opposition to the Med Mal Proposal.
We continued to argue against the proposal. However, rather than engage in serious debate, the MRT accelerated its process by submitting its recommendations to the Governor on February 23, several days in advance of its March 1 deadline. Alarmingly, Proposal Number 131 was submitted by the MRT to the Governor, who announced that he will include it in budget legislation to be considered by the State Legislature.
Proposals to modify New York's civil justice system should not be hijacked by hospitals and other healthcare interests promoting an agenda driven by their own self-dealing, rather than the public interest. I believe that such a process, which excludes legitimate "stakeholders" from the negotiating table, results in bad public policy and represents damaging, special-interest activity that lowers citizens' respect for and trust in the government. Proposals to radically re-shape our justice system should not be pushed through in the healthcare budget but independently debated by way of freestanding legislation.
Please ACT NOW to oppose the Medical Malpractice Proposal, which will be part of legislation to enact the State's budget by April 1.
Go to the State Bar's Legislative Action Center and send a message on this important topic to your State legislators, the Governor, and other State policymakers.
Stephen P. Younger
President, New York State Bar Association
Patterson Belknap Webb & Tyler LLP
Decoding the message for all you lay folk out there, any time a proposal "cap awards for non-economic damages to victims of medical malpractice", it necessarily caps the amount an attorney will receive under a contingent fee. Let 'Puter explain.
In a contingent fee arrangement, a client pays no fee whatsoever unless there is a collected judgment or settlement on the client's claim. The client in most jurisdictions does have to come out of pocket for the litigation costs (exams, depositions, copying, etc.). Usually, contingent fees range between 25% and 40% of the client's ultimate recovery. Not too shabby, in a field where many if not most cases settle well prior to trial.
In many cases, the single largest portion of a medical malpractice award is the non-economic damages portion. Non economic damages include such things as pain and suffering, mental anguish and loss of consortium (can't make sweet love to your special someone). Sometimes, punitive damages are limited.
So, despite the NYSBA's claim that its positions is really for the children --er, the stricken -- it's really all about preserving medical malpractice attorneys' gravy train. Tell a sad story, get paid. Never mind that the client would be full compensated for his economic injuries under the proposal, and would still receive non-economic damages up to the cap. Never mind that doctors' malpractice insurance rates would plummet, perhaps enticing more qualified physicians back to New York. Lawyers are screaming because the days of huge payouts based solely on sympathy would be over. And without a huge payout, there's no huge contingency fee.
Cui bono, indeed.