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The state of New York, in a joint effort between its health department and its judicial system, have created a unique program that should reduce medical malpractice costs and incidents, while fairly and quickly compensating victims. If there is true cooperation between these typically competing interests, it is possible that the program could actually work.

The plan calls for hospitals to quickly and responsibly admit and disclose medical errors to patients and, "if appropriate" (this is one of the requirements that we are dubious about), make early compensation settlement offers to the victims and their families. Facilitation and/or negotiation of these medical malpractice settlements would be assisted by specially trained judges. The best part is that the program is not a mandatory substitute for a jury trial; the patient can opt out and go to court is he/she wants to, including exercising the right to a jury trial. Five state hospitals will participate in a test of the program over a three year period.

State officials have indicated that medical malpractice premiums rose 14 percent in 2007 and the state froze rates for 2008 and 2009. A task force failed to reach a consensus for legislative action. Since the cost of medical malpractice litigation has skyrocketed and reduced the actuals filings of these cases (some actual instances of medical malpractice would cost more to pursue than the cases are worth-the small case is a victim of the tort reform movement) I question why premiums would increase. We would suggest that the insurance industry artificially increases premiums, blames the lawyers, and obtain support for legal reform from doctors who don’t know any better and don’t realize they are being gouged by their own carriers. Here’s what Health Commissioner, Dr. Richard F Daines had to say:

The project "doesn’t solve some of the basic problems with the tort system. This was very much what we could do practically, right now, without having to reform the whole system legislatively."

Another doctor blaming everything on the legal system and the lawyers, what a surprise! At least he agreed to implement the test program, which the state estimates will reduce court and attorney fees and save millions of dollars.

The main focus of the program is to shorten the extraordinary time it takes to resolve medical malpractice litigation. Protracted litigation is expensive and cuts into plaintiffs recoveries. If a reasonable settlement (again, we are dubious) can be reached quickly, the time savings might be worth a smaller recovery. Keep in mind that contested litigation requires attorney fees on both sides of the case. Officials not only expect substantial savings on plaintiff attorney fees, but on defense fees and costs as well.

The linked article does not indicate whether victims can be represented by experienced plaintiff medical malpractice attorneys. If this is an "attorney-less" system, we are vehemently opposed to it. "Special judges" or panels of physicians should not be permitted to force a settlement down the throat of a plaintiff who has no idea what the value of his case is. Hopefully, the victim is permitted to seek the advice of and/or retain an experienced attorney. Otherwise, this program is a worthless sham, designed to get unsuspecting plaintiffs to "settle now" by falsely arguing that time and contingent attorney fees eat into their settlements.

So, Lawsuit Financial, the pro-justice lawsuit funding company, challenges the state of New York to implement and administer the program fairly and responsibly. It should be as much ‘legally’ fair as it proposes to be ‘medically’ fair. By the way, clearly, a quick apology, in and of itself, will reduce malpractice payouts; part of the malpractice problem has always been the arrogant refusal of doctors to admit errors and offer to promptly rectify them. We are cautiously optimistic about the program; we will watch and wait. What do you think?

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life funding is needed during litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.

4 Comments

  1. If it takes care of the injured consumer it's a great thing and if it's out in the open it should help consumers in the future. But, how long until Insurance companies take advantage of unrepresented people?

  2. Gravatar for Jim O'Hare AIC AIS VP med mal claims
    Jim O'Hare AIC AIS VP med mal claims

    I am now old enough to be a pessimist.

    It wont work, but I give them points for trying. For many years NY had a medical malpractice panel, as a required process via faux arbitration type panel, to target losers and winners, with the hope that the losing party walked away. Great on paper didn't work and it was abandoned.

    The discovery process is unbelievably long in NY. Argonaut insurance recently settled a 1974 brain damaged infant case. - Yikes gotta love those occurrence policies!!

    How about the plaintiff atty sends all the records and pertinent expert affidavits, with the theory of liability , causation and damages via bill of particulars, to start the case with momentum. Your entire case in one package.

    Loser pays- I cant think of a better way to trim the # of suits. If it isn't a good case, you wont take it. If it is a good case the company will settle it. It is all on contingency, so it doesn't discriminate. It is the attorneys investment.

    Something has to be done with NY, the golden goose is dying. See MMIA and PRI

    To answer Mike's question: as soon as we get our horns sharpened, pitchfork honed, and cloven hooves shined, we'll be ready to take advantage.

    Regards Jim

  3. Jim: I've missed you! My recent posts must have not been worthy of response from you. What "golden goose"? A system that allows an insurance company to "delay deny confuse and refuse" for 36 years???!!!! As to Mike's comment, are you suggesting that insurance companies would pay all that is owed with or without an attorney? It seems that the current system is the golden goose...for the insurance company!

  4. Gravatar for Jim O'Hare AIC AIS VP med mal claims
    Jim O'Hare AIC AIS VP med mal claims

    Mike - Have not seen alot of injury board posts of late. I thought that I was cut off !!

    The golden goose is a doctor with insurance. Nobody wants to write in NY. PRI has no reserves a negative surplus of 43 mil, and would close but Patterson wont allow it. Read it again negative surplus. Right there with military intelligence and jumbo shrimp.

    In NY $800 mil paid in claims last year, mostly settlements. Somebody got paid, and 1/3 of the money did not go to the injured parties. So a cool 1/4 billion went to plaintiff attorneys. So the "golden goose" insurance companies that pay indemnity and feed many attorneys.

    It is a bad climate in NY and the storm is coming.

    regards Jim

    What if the docs went bare?

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