ALBANY, N.Y. (Legal Newsline) – Experts who have watched medical malpractice lawsuits skyrocket in states like New York, Rhode Island and New Jersey say lawmakers have made it too easy and attractive to sue and reform must happen.
“New Yorkers once again pay more for medical liability than anywhere in America,” Tom Stebbins, executive director of Lawsuit Reform Alliance of New York told Legal Newsline. “Sadly, Albany recently made matters worse by approving legislation that expands liability and makes it easier to file lawsuits.”
The “2018 Medical Malpractice Payout Analysis” released March 1 by Diederich Health Care, a medical liability insurance and consulting company based in Carbondale, Illinois, includes figures comparing medical malpractice rates among states.
Curt Schroder | Pennsylvania Coalition for Civil Justice Reform
Among Northeast states, New York topped the list for the most malpractice cases with a total approximate $617,973,000 in payouts with Pennsylvania second at $342,093,300, and New Jersey third with $267,913,250.
The lowest in the Northeast were the District of Columbia with $11,498,500, Delaware with $8,253,250 and Vermont at the bottom with $1,536,500.
Among Midwestern states, Illinois was far in the lead with $300,790,050 in payouts with Michigan second at $77,072,200.
The lowest Midwestern states were Wisconsin at $13,527,100, North Dakota with $3,505,000 and South Dakota at bottom with $2,080,750.
Among Southern states, Florida led with $260,480,550 and Georgia second at $148,249,800. The lowest among Southern states were Alabama with $24,330,000, Arkansas with $19,649,050 and at bottom, Mississippi, with $18,070,250.
California had the highest rate among Western states with $260,668,400 and Washington second at $75,629,350.
The lowest among Western states were Idaho with $11,478,750, Alaska with $8,270,000 and at bottom, Wyoming with $4,285,000.
Taken per capita in the case of New York, the highest in the country, the numbers translate to about $32 per person for every resident of the state. The lowest per capita rate was Wisconsin with approximately $2.33 for every resident of that state.
In January, a new law passed both houses of the New York State Legislature extending a statute of limitations to pursue a medical malpractice lawsuit against doctors who miss a cancer diagnosis from the former 15 months to 30 months.
The statute of limitations will begin running not when the error occurred as in the past, but the date at which the patient found out about the error. Called Lavern’s Law, the legislation is named after a woman who died in 2013 after doctors failed to diagnose her lung cancer.
Doctors and hospitals, including 30,000 members of the Medical Society of the State of New York, opposed the move. According to a July 2017 report in The Legislative Gazette, the medical organization’s members claimed the new law would increase New York’s already high liability costs and drive more doctors out of the state.
New York Gov. Andrew Cuomo signed the legislation in February after some modifications were made.
Stebbins said personal injury lawyers are lobbying for laws that give them greater advantage over medical professionals, ultimately restricting access and driving up the cost of health care.
“Rather than make it easier to file lawsuits, Cuomo and the legislature should prioritize a complete overhaul of the medical liability system and put together a plan that works for patients, doctors and hospitals alike,” he said.
Curt Schroder, executive director of the Pennsylvania Coalition for Civil Justice Reform, agrees that reform of the system is overdue.
“Generally the Northeastern U.S. counts for about 42 percent of all medical malpractice payouts in the country,” he told Legal Newsline. “Pennsylvania’s overall payout for medical malpractice increased from $315.5 million in 2016 to $342 million in 2017. Pennsylvania has not passed medical malpractice reform since the MCARE Act (Medical Care Availability and Reduction of Error Fund) in 2002.”
Schroder said courts continue to eat away at protections offered in the act such as venue (holding a case in the county where the malpractice allegedly took place).
“Plaintiff attorneys will go to great lengths to have their case tried in the high-verdict jurisdiction of Philadelphia,” he said. “A recent Superior Court decision found venue in Philadelphia even though the patient was in a Berks County hospital (67 miles away).”
Schroder said such changes go against the intent of MCARE, later adopted in the state’s procedural rules.
“Pennsylvania, unlike many states, has no limits on non-economic damages (pain and suffering),” he said. “Passing legislation or a constitutional amendment to cap non-economic damages would bring stability and reduce payouts of medical malpractice awards and settlements.”
A Pennsylvania General Assembly Bill, House Bill 1366 brought forward in 2017, proposes to amend the MCARE Act.
“Emergency room physicians are subject to second-guessing their decisions even though the patient might not be able to convey important medical information,” Schroder said. “House Bill 1366 would require a judge or jury in any court proceeding to apply a clear and convincing evidence standard when determining whether or not an act by emergency health care providers or their failure to act was grossly negligent.”
Schroder added this would establish a higher standard than the normal “preponderance of evidence” used in most civil cases and would require “gross negligence” be proven as opposed to “mere negligence.”
“Until the Pennsylvania Legislature addresses medical malpractice reform, we will likely continue to see payouts rise in Pennsylvania,” he said.