As delegates of the Medical Society of the State of New York met in Tarrytown over a long April weekend, the buzz in the rooms might have seemed more like the stirrings of a poked and prodded hornet”™s nest than the usual annual shop talk of physicians.
The medical society”™s three-day House of Delegates meeting at the Westchester Marriott followed closely in the wake of the state Legislature”™s adoption of a $132.5-billion budget that Gov. Andrew Cuomo called historic and transformational.
Medical society leaders instead called it a betrayal.
The final budget, approved in uncharacteristically timely fashion by legislators and hailed by the forcefully triumphant governor, left many of New York”™s physicians angry. In the absence of medical liability reforms, the “historic reforms” touted by Cuomo in the budget gave way to business as usual in Albany for doctors.
Their wrath was aroused by an apparent late compromise between the governor and legislators that left out of the final budget a $250,000 cap on non-economic awards, or pain and suffering damages, in medical malpractice cases. The state cap was among 79 recommendations of the Medicaid Redesign Team appointed by the governor to come up with $2.85 billion in savings on the state”™s out-of-control Medicaid program costs.
Cuomo officials said that target was achieved in the adopted budget through $2.375 billion in spending reductions and $475 million in lower-than-expected expenditures.
It includes a $15.3 billion cap on Department of Health Medicaid state expenditures, which, according to administration officials, make up the largest and one of the fastest-growing components of state spending.
The state medical society in March gave its conditional endorsement of the Medicaid Redesign Team”™s recommendations, some of which raised concerns among physicians who long have struggled with inadequate Medicaid reimbursement rates. The state doctors”™ group said it would support the reform as long as a key medical liability reform ”“ the malpractice awards cap ”“ remained intact. Without that, the redesign plan “is not sustainable,” society officials said.
“We are angry, disgusted and feel betrayed by this unconscionable decision,” Dr. Leah McCormack, president of the state medical society, said in a statement after the budget vote. “The budget agreement did not embody the medical tort reform principles of balance and shared sacrifice that would have brought economic stability to hospitals and physicians.”
McCormack said physicians agreed to a 2 percent cut in their already meager Medicaid payments, as proposed by Cuomo and his redesign team, in exchange for the malpractice awards cap and other medical liability reforms, the most significant of which was the state”™s creation of a medical indemnity fund for neurologically impaired infants. “What we asked for in return really cost the state nothing,” said the Forest Hills dermatologist.
McCormack said the awards cap would result in an estimated premium decrease of as much as 25 percent for doctors”™ malpractice insurance. “When you have an OB-GYN on Long Island paying $250,0000 in premiums, that”™s the difference between staying in practice or not,” she said.
McCormack during budget negotiations pointed out that 30 other states have limited non-economic awards in malpractice cases. In California, an OB-GYN with a Los Angeles practice pays one-third the cost of liability premiums for that OB-GYN on Long Island, she said. Since a cap was enacted in Texas in 2003, nine of 10 physicians there have seen a reduction of at least 30 percent on their premiums, McCormack said.
The medical society president said state Assembly Speaker Sheldon Silver was said to be adamantly opposed to the malpractice cap. Silver”™s Manhattan law firm, Weitz and Luxenberg, specializes in personal injury cases, including medical malpractice litigation.
Along with Silver”™s opposition to the cap, “I think it was not a top priority for the Senate or the governor,” McCormack said. “I think the governor was more concerned about closing the budget” before the April 1 deadline.
Shortly before the budget vote, Westchester”™s freshman member of the Silver-led Democratic conference, Assemblyman Thomas J. Abinanti, D-92nd District, explained his opposition to the medical malpractice cap over breakfast with members of the Westchester County Association.
“It”™s a terrible idea to have lawyers policing doctors, but that is the only system we have,” Abinanti said. “If you cap it, no matter how you cap it, there will be a disincentive for lawyers to bring lawsuits” on behalf of injured patients.
Without those malpractice awards, persons might exhaust their insurance benefits and financial resources and be pushed onto Medicaid rolls, thus adding to the state”™s Medicaid costs, Abinanti said.
McCormack, though, called the rejected malpractice cap “a missed opportunity” that will leave fewer physicians available to care for the state”™s neediest patients. “This deal potentially decimates the already fragile New York health care system,” she said.
In Albany, “I think we”™ll be back next year looking at the same problem,” McCormack said.
“It was like a roller-coaster,”™ the medical society officer said of this spring”™s budget process. “It was the closest we”™ve come to any tort reform.”
McCormack said the state medical society “will be reevaluating its political efforts and taking a long look at our priorities.” That work began in Tarrytown over the long weekend.
“It is no longer business as usual,” she said.
These are the poster boys for TERM LIMITS and LEGAL SYSTEM reform whereby if you lose a lawsuit (no matter who initiated the action)the losing party pays ALL the court costs including fees for opposing counsel. That in of itself will cut down on the number of frivolous suits without having to ‘cap’ the awards and punish people who really need or deserve.