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.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.