Medical Malpractice Caps Are Ill-Advised.Tort “Reform” Hurts.
The New York State Bar Association, of which I am proud to be a member, is yet another nationally recognized and bipartisan organization that sees through the tort “reform” movement. In a November 13, 2009 letter to U.S. Senators Charles Schumer and Kristin Gillibrand, The NYSBA’s President, Michael E. Getnick, urged that “[i]n assessing the current tort system, it is at least as important to consider the victims of malpractice in comparison to those who cause them personal injury. We have seen…that the attack of tort reformers is a movement that favors cost savings over quality and that emphasizes the corporate bottom line over safety of the public.” And he specifically called for a rejection of caps on damages.
“We object to legislation to cap pain and suffering compensation for victims of medical malpractice. Such caps would unjustly discriminate against classes of accident victims who suffer devastating physical and psychological losses.”
And speaking of caps, Michelle Mello, of Harvard’s School of Public Health, is not impressed with them, according to MarketWatch’s HealthMatters Blog. Professor Mello finds that any impact on medical liability has been modest, and the practice raises issues of fairness to victims. However, she and Kristen Gerencher, the post’s author, have some interesting thoughts on health courts.
I’ll rely on Patrick Quinlan, of InjuryBoard, to close today’s post. He points out that John Stossel, sketchy television news reporter and recent vocal advocate for tort “reform,” is a hypocrite, given Stossel’s own use of us “trial lawyers.” But…is it news if we are not surprised?
Somehow, it reminds me of the hypocritical ways of the RNC, and its leader, Michael Steel, who was quite vocal and self-righteous about keeping the dreaded “coverage for abortion” out of President Obama’s health care reform bill. Of course, Republicans, especially the conservative kind, would never allow such immorality to taint them in any fashion. But wait. What’s that, Mike? The RNC offered its employees insurance coverage for elective abortions? Luckily for us real Americans, Chairman Steele, now that he knows about it, has promised that this option will no longer exist under his administration, according to the LA Times. I don’t know about you, but I feel reassured. And if you guessed that Steele and his cronies are proponents of tort “reform,” you’d be right.
New York State Judges Get Increase, But Not In Salary
The NY Daily News reported yesterday that New York State judges, long overdue for a salary increase, had at least gotten some money for a change. But it was not the highly anticipated salary increase. Instead, Court of Appeals Chief Judge Jonathan Lippman has simply doubled their $5000 “supplemental allowance.”
NY Daily News reporter Bill Hutchinson found that this allowance can be used for “such expenses as judicial license plates, uncovered medical bills, robe dry cleaning and marriage counseling.” (If there is a common thread here, I hope someone will alert me to it.)
Unfortunately, this news was so unnewsworthy that it was virtually ignored when the Chief Judge first announced it in an October 14th web cast, reports Hutchinson. And it should not be surprising that this story did not become “viral,” as we say on the internet. The real story, which remains simmering on the collective back burner of the law-related news machine, is that our judges have not had a raise in pay in for 11 years. They still make $136,700 per year. That is less than the police officers of numerous state counties make, particularly when overtime is factored in. That is less than most of the attorneys who appear before them make. That is significantly less than my plumber and electrician make. And while I’m happy for my friends on the police forces, and for the guys who keep things working at my house, I am outraged that the professionals who are entrusted with guiding our justice system have had their salaries frozen for so long. Clearly, judges have not even received the relatively modest cost-of-living increases that other employees of the state have, and, if nothing else, this sends out a dangerous message about the priorities of our state politicians.
Could this be the result of bad press? I know there are some judges on the bench who are arguably unworthy of their robes. But most are devoted to what they do, and would not be continuing to report for work every day at this substandard salary if they were not so invested in it. And there are several shining stars who could justifiably bolt the bench for a high-paying job in private practice, who thus far have resisted doing so. But this can’t go on forever. Our luck is about to run out. It is high time to pay our judges a fair wage.
What? That Doctor Has Insurance? Ct. of Appeals Weighs In
In my last post, I discussed the Appellate Division, Second Dept.’s approach to the mere mention of the concept of professional liability insurance during a trial. Unfortunately, the result was a mistrial.
As if on cue, the New York State Court of Appeals addressed the issue anew about a week after the Grogan decision. In Salm v. Moses, NY Slip Op 07479 (2009), decided October 22, 2009, defendant moved at trial to preclude plaintiff from questioning defendant’s expert dental witness about his relationship to defendant’s professional liability insuror. Both individuals were insured by, and shareholders of, the same insurance company.
Plaintiff objected, but the trial court granted defendant’s motion, so that such cross examination of defendant’s expert could not take place. The trial court based its decision on the prejudicial effect that knowledge of defendant’s insurance coverage would have on the jury.
The Court of Appeals affirmed the Appellate Division, First Department’s Order affirming the trial court’s decision, finding that the trial court was well within its discretion based on the perceived ”risk of confusion or prejudice.” And it restated some general principles in getting there. Evidence that a defendant carries liability insurance is generally inadmissible for two reasons: (a) if a jury knows that an insurance company is footing the bill, that will encourage an adverse verdict; and (b) evidence of insurance coverage injects a collateral issue that has no bearing on whether the defendant was negligent.
Is the Court of Appeals also underestimating the sophistication of modern jurors with this decision? Isn’t it time that the Court acknowledge that the State’s citizens, unless they’ve been hiding out in caves, are aware of the role insurance companies play in commerce and in lawsuits? Justice Pigott, in the concurring opinion regognizes that “[i]t is common knowledge that most defendants carry insurance. Indeed, most prospective jurors are cognizant of the significant role in litigation that liability insurance plays…”
As for the missed opportunity to show the relationship of defendant’s expert toward defendant, Justice Pigott believes, as I do, that the jury should have been presented with such evidence, through cross examination. And so, you might be confused, as I was at first, to see that Justice Pigott was concurring, instead of dissenting. But on closer examination, it becomes clear that Jusitce Pigott went along with the majority on procedural grounds. Plaintiff’s counsel had had the opportunity at trial to voir dire defendant’s expert concerning potential bias, but failed to request it. Apparently, Justice Pigott viewed this as a failure to preserve the issue for appellate review.
But look at the big picture here. The Court of Appeals is relying on ancient, outdated principles, and ensuring their continued survival. And it has done so here at the expense of plaintiff’s right of cross examination. Clearly, the trial court was overly cautious, let alone blind to the realities of the modern world, when it prevented plaintiff’s cross examination–an exercise that surely would have shown an overly comfortable relationship between defandant and the expert hired to defend him. Might the exposure of this arrangement changed the outcome at the trial level, from defense verdict to plaintiff’s verdict? We’ll never know, because the Court of Appeals has allowed the lower courts to continue living in the past.