New York Bar Assn. president decries tort reform proposals

Chris Rizo Nov. 15, 2009, 2:00pm

Michael Getnick

ALBANY, N.Y. (Legal Newsline)-The U.S. Senate should eschew cost-cutting tort reform measures in its health care overhaul bill, the president of the New York State Bar Association said.

Association President Michael Getnick, in a letter to his state's two senators, said how medical malpractice cases are handled should be left up to the individual states.

Moreover, if lawmakers cap the amount of compensation that plaintiffs could receive for pain and suffering, as Republicans have suggested, it would harm victims, said Getnick, who practices personal injury law at Getnick Livingston Atkinson & Priore LLP.

"As Senate activity on this topic continues, I want to reiterate our long standing objections to those tort and medical malpractice reform proposals that have resurfaced as part of the current debate," Getnick said. "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."

Getnick sent his letter to New York Sens. Kristin Gillibrand and Charles Schumer, chairman of the Senate Committee on Rules and Administration.

In his letter, Getnick praised the House for not including in its narrowly-approved plan any tort reforms.

"In 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," he said. "We have seen in the past 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."

House Republicans had sought to include in the House plan legal reforms including a cap on punitive damages and narrowing the statute of limitations on malpractice claims.

Instead, the bill approved by the House would allow the U.S. Secretary of Health and Human Services to give grants to states that overhaul their medical malpractice systems so long as their reforms don't in any way limit attorneys' fees or impose caps on damages.

The director of the nonpartisan Congressional Budget Office, Douglas Elmendorf, has said as much as $54 billion could be saved over the next 10 years if Congress enacts legal reforms including a $250,000 cap on damages for pain and suffering and a $500,000 cap on punitive damages and restricting the statute of limitations on malpractice claims.

The House-approved plan and the one that is expected to be passed in the Senate will be merged in conference committee before a final bill goes to President Barack Obama, who has made health care reform the cornerstone of his domestic policy agenda.

The 2,000 page House plan, which would fundamentally change the way the nation's medical insurance companies do business, passed the House on a 220-215 vote, with the support of just one Republican and opposition from 39 Democrats.

The bill, weighing about 20 pounds, would extend coverage to about 36 million uninsured Americans, bar insurers from denying coverage and prohibit the insurance industry from charging higher premiums to consumers with a preexisting condition.

To pay for the coverage expansion under the House bill, the legislation calls for, among other things, a 5.4 percent surtax on individuals making more than $500,000 a year or families earning more than $1 million and a 2.5 percent excise tax on medical services or devices.

The bill contains also a public insurance option, which proponents say is aimed at injecting more competition into the marketplace. Under the legislation, the insurance industry would lose its exemption from federal antitrust restrictions on market allocation and price fixing.

From Legal Newsline: Reach staff reporter Chris Rizo at

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New York State Bar Association
1 Elk Street
Albany, NY 12207

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