Come on over to the new blawg to see my thoughts on the latest interpretation of the Arons v. Jutkowitz decision.

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It’s always heartening and reassuring to see that large corporations that manufacture poisons for human consumption–think Phillip Morris here– have gotten their money’s worth from their efforts to promote the great lie that is tort “reform.”  You know.  It’s the same story, basically, repeated over and over again. The plaintiff with the faked injury who conspires with the ethics-challenged plaintiff’s lawyer, who limps into the courthouse with a frivolous case, i.e., one entirely lacking in merit, and somehow manages to fool the defense lawyers, their expert physicians who have examined the plaintiff, the judge and 12 jurors into awarding him millions of “jackpot justice” cash. I mean, think about it! Those poor defense lawyers at those large firms paid handsomely by the medical liablity insurance companies were fooled for about 3-4 years, the time it usually takes a medical malpractice case to get to trial or settle.  The defense lawyers gained no insight from their opportunities to depose the plaintiff for sometimes days at a time.  Their understanding of the case and its merits benefited not one bit from the crates of medical records obtained from every doctor that ever looked at the plaintiff prior to the lawsuit, even after these records were analyzed by physicians on staff with the insurance company.  The defense lawyers had no chance to observe the demeanor and credibility of the plaintiff during those drawn-out depositions, so that they would of course have no idea whether a judge or jury would appreciate their narrative of events at a trial.

Not surprisingly,  medical malpractice suits are down, according to technorati, while injuries resulting from malpractice are up.  That is the kind of perversity that results from well-funded efforts aimed at keeping the negligently injured out of the courthouse.  How is that accomplished? One favorite tactic is to shorten the time one has to bring the lawsuit.  Another is to place arbitrary caps on damage awards, insuring that victims who have already suffered debilitating injuries will think twice before embarking on a painful, drawn-out journey that will not result in very much compensation at the end, even if the journey is a successful one. But the favorite tactic is the one described above–tarnish plaintiffs, their lawyers, their motives for seeking redress in court, everything about them.

Maybe it’s time for a different way of thinking about victims of medical malpractice.  And maybe an organization devoted to consumer safety has a suggestion worth hearing.

“There is a crisis in medical malpractice, not lawsuits,” said Taylor Lincoln, research director for Public Citizen’s Congress Watch division and the author of the new study. “Trying to stop people from being compensated for catastrophic injuries is not the answer. We should instead concentrate on making hospitals safer and disciplining doctors who repeatedly commit malpractice.”

I think Mr. Lincoln has a point.  And I know, based on a recently concluded study right here at NY Presbyterian Medical Center, that an OB/GYN patient-safety initiative, properly adhered to, will save lives, and millions of dollars in liability costs for hospitals. Yet a bill that proposes using such a system in all New York State hospitals is being virtually ignored.  I think that says something about the state of our civil justice system in New York.  Unfortunately, because this is a family blawg, I can’t print that statement here.

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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 reverse 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.

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Why would it want to do that?  All I did was suggest that the Commission may have had ulterior motives when it dismissed, without so much as an investigation, an ethics complaint made by the Center for Justice and Democracy about the lack of balance on the Medicaid Redesign Team.

And yet, today I received this in my email box:

Dear Mr. Barovick,

In your blog posting on March 26 (“In New York State, Lots of Irony In Integrity”) you wrote:

Well, here’s something that consumers in New York State might be interested in. The good folks on the NYS Commission On Public Integrity serve at the pleasure of the Governor. And so, speaking of the subject of integrity, its members have a personal stake in pleasing the same entity. Could it be that the NYS Commission On Public Integrity was unduly influenced by that interest when it outright rejected the conflict of interest claim? And wouldn’t that be the ultimate irony?

I am writing to inform you that the Commissioners do not serve at the pleasure of the Governor.  In order to insulate the Commission from such influence, they serve five-year terms and cannot be removed except for “substantial neglect of duty, gross misconduct in office, inability to discharge the powers or duties of office or violation of this section, after written notice and opportunity for a reply.” [Executive Law § 94(7)]

I believe that a correction is in order.

Walter C. Ayres

Director of Communications

Commission on Public Integrity

540 Broadway

Albany, New York  12207

And here is my response to Mr. Ayres:

Dear Mr. Ayres:

I disagree with you.  It is the Governor who can remove commission members, and therefore, they serve at his pleasure. The statutory reasons that allow for such discharge are, as I am sure you will agree, vague enough to justify removal whenever the Governor feels like getting rid of someone who is being particularly pesky to him or his agenda.

I also think that your organization made a decision based not on reason or ethics, but pure politics.  So to me, you do not have sufficient credibility or standing to complain about my post, which I will not change.

Thanks for writing.

Andy Barovick

So what’s really going on here? The Commission doth protest too much, methinks. Or, to put it another way, the Commission is reacting a bit dramatically because it doesn’t like being called out on its shortcomings of integrity.  Yet the spirit of deception continues in Mr. Ayres’ own missive. He emphasizes that the commissioners cannot be removed except under several circumstances, but leaves out who it is that does the removing, i.e., the Governor.  However, when you read the applicable statute, found in my initial post (click on link above), you cannot miss that fact.

Nobody in this debate will argue with a straight face that the Medicaid Redesign Team wasn’t stacked with hospitals and related organizations.  Nobody will contest that there was no representation of patient-safety groups or consumers’ rights organizations. Nobody could deny that it is the patients harmed by malpractice who would be most affected by any tort “reforms” proposed by the MRT.  So when the Center for Justice and Democracy filed its complaint, which was grounded in the stark imbalance and unfairness of the makeup of the MRT, that organization deserved, at the very least, to be heard.  Instead, the Commission on Public Integrity muzzled them, and quickly.  To give them a fair hearing would have involved conducting an investigation, and actually examining the serious, fact-based claims that the Center put forward.  But the pillars of Integrity at the eponymous Commission must have had other things on their minds, such as political expediency.  Because nothing else will explain the failure to accord the Center’s complaint even a momentary look.

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According to Capitol Confidential, a budget agreement has been reached in Albany, and it does not include caps on medical malpractice awards.  As many of you know, the Medicaid Redesign Team had proposed a $250,000 cap on non-economic damages, which would have unfairly impacted children, the elderly, the unemployed and under-employed.

No word yet on whether the Neurologically Impaired Infant Fund remains part of the budget. I hope not, since, among other things, nobody from the MRT has even been able to fully articulate where the money for such a fund would come from.  Moreover, if compensation to a neurologically impaired infant is made through an administrative board instead of the courts, there will be little motivation for hospitals and individual physicians to focus on patient safety improvements.  And, ironically, this “cost-saving” measure would simply shift the financial burden for a lifetime of care from those who caused the injuries, i.e. negligent doctors, to state taxpayers, who will ultimately be taxed when these infants are forced to turn to Medicaid.

But good news is good news.  Medical consumers have won something today.

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Integrity is a funny concept.  Some define themselves by it, and live by its precepts.  Others use it as a shield, behind which they act in ways that are anything but integrious. (Thanks to Antonin Pribetic, author of The Trial Warrior Blog, for pointing out this site, which provides an expanded definition of the term.)

With that in mind, let’s have a look at Capitol Confidential’s most recent post on Albany’s tort “reform” push.  You may recall that the Governor’s Medicaid Redesign Team wants to impose caps on non-economic  medical malpractice damages, and to take claims of infants neurologically-impaired by medical malpractice out of the court system, and into a state no-fault fund.

You may also recall that the same Team is comprised of leaders of hospital systems, a couple of politicians, and the Greater New York Hospital Association.  In other words, it is, essentially, stacked with the very corporations that would benefit most if the tort “reforms” are made into law.  This spurred an ethics complaint by a pro-consumer group, the Center for Justice and Democracy, about the composition of the MNR.  Why, the Center wondered, were there no representatives from consumers’ rights groups or patient-safety groups, so that the voice of the people directly affected by medical mistakes could be heard?

According to Capitol Confidential, the ethics complaint made by the Center for Justice and Democracy to the New York State Commission On Public Integrity has been rejected.  In fact, they have refused to even investigate the Center’s claims, according to the letter explaining its actions, found within the Capital Confidential post.  It found no conflict because the MNR is just an “advisory” panel, so that there was no imbalance of power.  Really?

Well, here’s something that consumers in New York State might be interested in. The good folks on the NYS Commission On Public Integrity serve at the pleasure of the Governor. And so, speaking of the subject of integrity, its members have a personal stake in pleasing the same entity.  Could it be that the NYS Commission On Public Integrity was unduly influenced by that interest when it outright rejected the conflict of interest claim?  And wouldn’t that be the ultimate irony?

But more important, don’t New York consumers deserve better?

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