Powerful Interests Kill Popular Malpractice Legislation

A bill introduced in the New York State Legislature aimed to help people who were grievously injured by medical malpractice. It had wide, bipartisan support, and passed one of the state’s two houses. But it’s unlikely ever to become law.

As attorneys Thomas Moore and Steve Cohen wrote on the op-ed page of the New York Times, that’s because its powerful enemies flexed their misguided muscle.

The legislation is known as Lavern’s Law, named for a Brooklyn woman. She had an X-ray at a hospital that showed a suspicious mass. But no one at the facility alerted her to that result, and three years later, she died of an otherwise curable form of lung cancer. The legislation was drafted because her daughter was barred from suing for negligence because New York victims of such horrible care must take legal action within two-and-a half years of when the medical error was made. It doesn’t matter when it was discovered. Most states, unlike New York, use the discovery date as the fair starting gun on the legal clock for the time to bring a lawsuit.

But decency and fairness clearly are not priorities for some powerful interests in New York, and the people who cave to them. Hospitals and the health-care lobby opposed Lavern’s Law, Moore and Cohen suggested, because they feared more medical malpractice lawsuits. That might well be the result, the writers said, ” … but the actual number would probably be minuscule: Of the hundreds of possible cases we evaluate every year, only a handful are outside the statute of limitations. …”

As is widely reported, here and elsewhere, hospitals make lots of mistakes for which they should be accountable. “To Err is Human,” the seminal 1999 report by the Institute of Medicine, showed that at least 44,000 patients were killed and thousands more injured every year because of errors committed in hospitals. A couple of years ago, the journal HealthAffairs pegged the number of avoidable deaths at probably 10 times higher.

“Hundreds of thousands more patients are seriously injured through negligence,” according to Moore and Cohen. “Doctors and hospitals are doing a poor job of policing themselves, yet they have been successful at keeping anyone else from doing it.”

The writers remind readers, as have we, that very few such mistakes result in medical malpractice lawsuits. In 2013, even the Journal of the American Medical Association (JAMA) concluded that only 1 in 100 medical errors resulted in a claim.

“Only a tiny percentage of malpractice cases result in doctors’ hospital privileges being curtailed,” Moore and Cohen reported. “Between 2011 and 2013, there were approximately 7,400 complaints against doctors filed each year with the New York State Office of Professional Medical Conduct. Most consumer complaints are not about suspected malpractice – after all, it takes a fair amount of expertise to identify medical errors caused by negligence. Rather, most allege impairment, improper prescribing, sexual misconduct and fraud.”

Of all those complaints, only an average 287 per year, or 4 in 100, resulted in the responsible party’s license being restricted, suspended or lost.

Anybody familiar with personal injury law knows that even when victims of medical malpractice lawsuit are successful in court, their judgments often are modest. That’s often due to the wave of judgment caps imposed by state legislatures on how much people are allowed to recover in these cases, a situation we wrote about last month that also brings additional medical harm. Such unfair, restrictive relief isn’t even the issue addressed by Lavern’s Law – it was a much more basic effort to allow people sufficient time to realize that they were harmed, and the extent of that harm. Moore and Cohen called it shameful that it wasn’t allowed to come up for a final vote, and that an even greater shame “is that hospitals don’t put more emphasis on patient safety. As the Lavern’s Law travesty makes clear, we need better solutions. Don’t limit what injured people may collect, and don’t make it more difficult for victims to get their cases heard. …”

The writers offered ways to prevent negligence from happening in the first place, and it begins with medical providers being better watchdogs of their peers. A recent report by Public Citizen showed that only about 6 in 100 doctors probably were responsible for nearly 60 in 100 malpractice payments between 1991 and 2005. Why shouldn’t this small minority of wreckless professionals be identified by the people in the best position to recognize them?

Moore and Cohen also called for state licensing agencies to improve their ability to keep the worst offenders out of hospitals. “The threshold for state medical licensing agencies to initiate reviews should be reduced,” they said. “[I]n New York it takes six malpractice judgments or settlements. It should be three at most.”

We think even that is generous.

The commentary also said that hospital leaders should be held accountable for the negligence their facilities commit. “The 10 highest-paid administrators and doctors at each hospital should have a significant portion of their compensation tied to patient safety,” advised Moore and Cohen, claiming that if as much as 30% of their compensation depended on reducing malpractice claims against their facility, hospitals would be routinely safer places.

“But as long as hospitals and doctors block legislation and fight regulation,” the safety advocates concluded, “patients will remain in peril.”

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