New York Medical Malpractice and the Fallacy of Tort Reform

Doctors make mistakes. If you want peace of mind, we offer it: we will investigate, free of charge, any case you may have against a doctor or hospital for malpractice.

Cornell and Columbia educated lawyers are on your side, for once, rather than on the side of the big insurance companies and 'big pharma'. And why are we not on their side? Because we like our freedom -it's the concept this country was built, and, we stand up for what we believe is right, and fight what we know is wrong.

The Institute of Medicine of the National Academy of Sciences estimated that medical errors kill up to 98,000 U.S. hospital patients each year (Kohn, LT, Corrigan JM, Donaldson MS, editors. To Err is Human: Building a Safer Health System. Washington, D.C; 2000).

Harvard researchers examined more than 30,000 randomly selected records from New York hospitals. They concluded that only 4% of those who were injured by doctors, sued (Patients, Doctors and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York. Cambridge: Harvard University Press; 1990). The NY medical malpractice lawyers at The Najdovski Law Firm PLLC are positioned in the legal marketplace with the resources, state-of-the-art computer technology and financial ability to take on even the most powerful insurance companies and biggest NY hospitals.

Medical malpractice is a general term that refers to all the various instances of medical error, mistake or negligence by a doctor or hospital, and includes the following, but by no means exhaustive, list:

                    Wrongful Death

                    Birth Injury

                    Laparoscopy Errors

                    Spinal Cord Injury and Brain Injury

                    Surgical Errors

                    Unnecessary Surgery

                    Failure to diagnose a disease or ailment, which causes you harm or injury

                    Untimely diagnosis of cancer

                    Wrong diagnosis

                    Error in prescribing proper medication

                    Failure to be referred to a specialist

                    Adverse drug reaction

If you want us to investigate whether you or a person close to your heart has experienced medical malpractice, time is against you. Under NY law, and generally speaking (this is not legal advice, call us before you jump to that conclusion) -as there are exceptions such as the Continuous Treatment Doctrine- you have 2 1/2 years from the date of the malpractice to file a civil action in court. And don't think lawyers will stand on line to take your case on the 30th month; lawyers need to investigate the case, which can take months to order the medical records and then have a doctor review them for any malpractice. You have a right to be compensated for any injury, death, pain that a professional caused you. Our country was built on that principal and Congress and the Courts have consistently enforced that principal of American law. If a loved one has been injured or has died due to a medical error, you may be able to pursue a medical malpractice case. Some potential clients enter our offices and tell us they feel sorry to sue their doctor; this is a common misconception bolstered by the insurance lobbyists: the person that ultimately pays in a medical case is not the doctor or hospital; it's the insurance company. And the operative word there is "ultimately pays." Because simply bringing a case in Court against a doctor does not mean you will ultimately receive a check for your pain, suffering, health, additional surgeries, loss of income, etc. The insurance companies spend $ 1.4 million a day lobbying for tort reform in Washington DC www.sodahead.com/united-states/do-you-support-health-insurance-lobbyists/question-656083/ Who is the lobbyist for the unborn child? Or a baby injured during birth because the doctor who did the delivery was too busy eating a sandwich -a real case we have. We are. That's why retaining a top NY medical malpractice lawyer who sues doctors is like finding the Holy Grail: a good lawyer can make, and a bad lawyer can break, your case.The doctor's credentials are not affected in the least; he may not be a happy camper about it, but, believe us, his office is open billing for his services the next morning.

We will investigate the medical records in your case, free of charge, to see if you have a medical malpractice case. But you ought seek competent advice from a top NYC medical malpractice lawyer immediately. If our medical malpractice lawyers take your case, you can rest assured we will go through every permissible legal channel to get you the monetary compensation you deserve. Since there is a deadline by which the patient must file a civil action, it is important to act quickly.

Don't be one of the 96 out of every 100 people who do nothing in the face of medical malpractice in NY. It's a right you have, and lawyers and judges throughout NY (as well as in the highest court of the land in Washinton, D.C.)have spent many a day and night protecting that right for you. Our Medical Malpractice FAQs and Medical Malpractice Blog are excellent resources for finding up-to-date medical malpractice news.

One article we have located simply takes your breath away: written in response to President Bush's push toward limiting the amount of money a jury can award you for your pain and suffering (e.g. $ 250,000.00-- California --don't live there) in medical malpractice cases, we have therefore attached it here. In the Yale Journal of Health Policy, Law & Ethics, Winter 2005, Geoff Boehm took the formidable task of addressing tort reform. His article was entitled: 'DEBUNKING MEDICAL MALPRACTICE MYTHS: UNRAVELING THE FALSE PREMISES BEHIND 'TORT REFORM' But in our opinion, 'false premises' is too soft a phrase; it's more like propaganda spun by the insurance companies that take the insurance premiums from doctors so that their CEO can take home a $ 12 Million annual salary: His article reads: 'Medical malpractice--negligence and recklessness by hospitals and physicians--injures hundreds of thousands of people each year. In 2000, the Institute of Medicine released a lengthy report, To Err Is Human, revealing that preventable medical errors result in up to 98,000 deaths in hospitals annually. Unfortunately, lawmakers and others have focused too much on reducing liability for those preventable errors and too little on reducing their occurrence. As a result, a July 2004 study shows that over a decade in which two-thirds of states passed 'tort reform' measures that limit or restrict medical malpractice lawsuits, there was no improvement in safety: The number of avoidable deaths in hospitals alone is now approximately 195,000 per year, not including obstetrics patients. Despite these bleak statistics, when organizations like the American Medical Association (AMA) speak about a malpractice 'crisis,' they are referring not to the people injured or killed by medical errors or the widespread failure to discipline negligent doctors (including repeat offenders), but rather to doctors' increasing malpractice insurance premiums.

This Yale law journal article continues, 'Tort reform lobbyists seeking to limit the rights of victims of medical malpractice through caps on damages often string together various concerns about health care in the United States that are unrelated to, or would not be addressed by, the reforms they seek. In particular, the insurance industry and other tort reform proponents rely on misinformation and largely anecdotal evidence that the civil justice system is 'out of control' and needs to be scaled back. However, the facts reveal a different picture. First, the number of medical malpractice cases being filed per capita has dropped over the last ten years, as have tort filings generally. Even in the states that the AMA has labeled 'crisis states,' the number of cases per capita has been dropping. The vast majority of those injured by malpractice never file a claim seeking to hold the wrongdoers accountable. Even though medical malpractice kills some 195,000 hospital patients every year and injures many more.'

He states in that article: 'By limiting award amounts, caps target the most egregious cases of malpractice and the most severely injured patients--the very opposite of the 'frivolous' or 'junk' lawsuits that advocates for caps portray when they are trying to rile up the public or lawmakers to limit victims' rights. Two recent studies have confirmed that caps on damages in medical malpractice cases, such as California's draconian $250,000 cap on non-economic damages, are most devastating to those who suffered the most heinous injuries, those killed by the defendants' acts, and those who suffered the greatest loss to their quality of life. In addition to mischaracterizing the quantity and quality of medical malpractice suits, supporters of tort reform make unsupported assertions about the impact of medical malpractice litigation on the quality and availability of health care. Despite the claims of the AMA and state medical societies, the number of medical professionals is growing. Moreover, these organizations repeatedly aver that doctors are leaving the twenty 'AMA crisis states,' and even the twenty-four 'AMA problem states,' in droves because of litigation concerns, resulting in a lack of access to care. However, investigations of such claims by the U.S. General Accounting Office, various reporters, and state agencies have shown the claims to be false or widely exaggerated. ' He went on to state: 'But it is a fiction to tie that lack of access to malpractice litigation or jury awards, or to claim that a cap would make a difference. Such areas often have difficulty attracting or retaining other professionals as well. Moreover, this problem has existed for a long time, even before physicians considered malpractice insurance premiums problematic. In fact, the Council on Graduate Medical Education has stated, 'The relative shortage of health professionals in rural areas of the United States is one of the few constants in any description of the United States medical care system.' Rural health care shortages occur throughout the world, including places where there is nothing like the U.S. civil justice system in place. His second chapter, entitled: 'The Truth About Caps and Other Medical Malpractice 'Reforms'stated, in part: 'The increasing cost of health care in the United States and the high costs of medical malpractice insurance are legitimate and pressing concerns. Unfortunately, caps will do little to address these issues. First and foremost, costs related to litigation are a miniscule portion of health care spending; according to the United States Congressional Budget Office (CBO), these malpractice costs are less than two percent of total spending. CBO has, in fact, noted that 'a cap on noneconomic damages and a ban on punitive damages . . . would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small.' Tort reform advocates often claim that doctors practice 'defensive medicine' because of fears of medical malpractice suits and that this practice, in turn, raises the cost of health care. However, in 1994, the congressional Office of Technology Assessment (OTA) found that less than eight percent of all diagnostic procedures result primarily from liability concerns. OTA found that most physicians who 'would order aggressive diagnostic procedures . . . would do so primarily because they believe such procedures are medically indicated, not primarily because of concerns about liability.'Thus, the effects of tort reform on defensive medicine 'are likely to be small.' The CBO has also reported that 'some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive (albeit small) benefits to patients. . . . CBO believes that savings from reducing defensive medicine would be very small.'

He continues: 'The insurance industry, the U.S. Chamber of Commerce, and corporate front groups such as the American Tort Reform Association have spent many tens of millions of dollars in pursuit of immunity or limitations on liability from wrongdoing. Their efforts include promoting insurance companies' legislative agenda to limit liability for doctors, hospitals, HMOs, nursing homes, and drug companies that cause injury. Moreover, federal and state lawmakers, regulators, doctors, and the general public are being told by medical and insurance lobbyists that doctors' insurance rates are rising due to increasing claims by patients, rising jury verdicts, and exploding tort system costs in general, despite clear evidence to the contrary. Just as caps and other tort reforms do not succeed in significantly reducing aggregate health care costs, they also fail to control individual insurance premiums. Insurers state that to recoup money paid to patients, they must raise insurance rates or, in some cases, pull out of the market altogether.

The article continues, 'Since insurers say that jury verdicts are the cause of the current 'crisis' in affordable malpractice insurance for doctors, they insist that the only way to bring down insurance rates is to limit an injured consumer's ability to sue in court. However, historically, the cause of skyrocketing rates has little to do with the legal system. Insurance companies make profits primarily from investment income. Insurance companies take in money in the form of premiums paid and then hold it for some length of time until they need to make a payout to, or on behalf of, a policyholder. In the interim, the money being held, known as the 'float,' is invested and earns money for the insurance company. When the investment market is strong and/or interest rates high, the companies make a good profit by investing the float and may under-price policies in an effort to attract more premium dollars to invest--this scenario is termed a 'soft market.' But when investment income falls because of a decline in the markets and/or drops in interest rates, insurance companies will raise their rates or cut back coverage. Such a 'hard market' occurred in the mid-1970s, more severely in the mid-1980s, and again between 2002 and 2003. Insurance rates for doctors skyrocketed in each of the hard markets. Thus, while insurers and other tort reform proponents blame malpractice litigation for the hard market premium increases, they are in fact consistently driven by the insurance companies' response to the broader economic cycle. In fact, claims and payouts stayed flat or declined through each of the 'crises' or hard markets. [FN38] With payouts flat, rising premiums have caused property-casualty insurers' profits to skyrocket. From 2002 to 2003, profits rose 997% and they continue to soar --reportedly doubling between the first quarters of 2003 and 2004. Despite these striking statistics, successful lobbying by interest groups in response to increasing insurance rates for doctors has yielded a wave of legislative activity to restrict injured patients' rights to sue for medical malpractice. Because insurers target the civil justice system, rather than the economic cycle that leads to periodic 'crises,' 'tort reform' remedies--including caps-- pushed by insurance companies and their advocates during each hard market failed to bring down rates. When confronted with a report showing that tort reform does not lead to reduced premiums, the American Insurance Association responded, 'Insurers never promised that tort reform would achieve specific savings.'Over the past year and a half, insurers continued to raise premiums, even in states where tort reforms were enacted, even though claims and payouts dropped and the investment markets began to improve. It appears we are now entering a soft market: Premiums are beginning to drop or increase more slowly in all lines of insurance, including medical malpractice--in states with and without caps or other tort reforms. While the soft market will bring some relief as premiums drop, if there is no significant increase in regulation of the insurance industry, we can expect that the next downturn in the economy and the market will bring back rising premiums and, predictably, renewed efforts to blame injured patients and seek ineffective and harmful tort reforms, as insurers once again raise their rates to make up for investment losses. So if one puts aside the unfounded rhetoric that claims to connect a need for caps to rising insurance premiums and health care costs, to a supposedly growing number of frivolous lawsuits, and to alleged movement of doctors among the states, what then are the true motivators for tort reform proponents? First, tort reform efforts (including caps), are based on a mistrust of, or discomfort with, the American institution of civil trial by jury. This fundamental right of ordinary citizens and consumers to hold accountable those with power--including corporations, large institutions, professionals, and even government--is a fulcrum of our democracy. In fact, one reason that several state courts have struck down tort reform laws as unconstitutional is the way in which the laws limit the power of juries to decide cases. He further went on to state: 'Judges, who have more intimate knowledge of the system than anyone, find such mistrust of juries inappropriate. A 2000 survey sent to one thousand trial judges, including every federal trial judge, revealed that: (1)Judges have 'a high level of day-to-day confidence in [the jury] system.' (2) 'Only 1 percent of the judges who responded gave the jury system low marks.' (3)'[N]ine of every 10 trial judges, those who work closest with the nation's jury system, think the system needs only minor tinkering, at best.' (4)'Overwhelmingly . . . state and federal judges said they have great faith in juries to solve complicated issues.' (5)'[N]ine of 10 judges responding said jurors show considerable understanding of legal issues involved in the cases they hear.' Statistics also show that juries are generally conservative and reasonable, and their decisions rarely differ from what a judge would decide. His 'Recommendations' at the end of the article were as follows: 'Our civil justice system exists to provide those who have been wronged a forum to seek truth and compensation, even to the dismay of those who may have acted negligently, recklessly, or worse. Caps not only limit the liability of wrongdoers, take away the fundamental power of juries to decide adequate compensation, and leave the most severely injured victims without sufficient means of redress, but they do not even address the increasing costs of health care or medical malpractice insurance. An important solution to avoiding future spikes in premiums is stronger regulation of the insurance industry. Unlike caps and other tort reforms, insurance industry regulation would lower premiums charged to doctors, hospitals, and other policyholders, while protecting the rights of patients and consumers. Given the soaring profits of insurance companies, such regulation is unlikely to put them in financial harm.'

The article ends by stating: '[D]octors would better serve themselves and their patients by directing their anger and efforts regarding rising premiums toward the questionable practices of the insurance industry and the subset of doctors who repeatedly commit malpractice without facing adequate discipline. Seeking to take away patients' rights is not the answer.' [Excerpted from, "Medical Malpractice Myths: Unraveling the False Premises Behind 'Tort Reform', Yale Journal of Health, Policy & Ethics, Winter 2005.]