WHAT’S NEW IN NY MEDICAL MALPRACTICE? ARONS AUTHORIZATIONS/MEDICAL INDEMNITY FUND

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 r everse 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.