Proposed NY Tort Reform Would Punish Medical Malpractice Victims

The proposed cap on pain and suffering damage awards in Governor Cuomo’s budget has caused a significant rift not only within the state senate and assembly, but also among medical practitioners/insurance companies and victims advocates. Under the proposition, which originated with Cuomo’s Medicaid Reform Team, a $250,000 cap would be placed on pain and suffering awards in medical malpractice lawsuits.

Proponents of the cap have cited an alleged potential budget savings in the hundreds of millions of dollars if it is adopted. Dissenters, such as Assembly Judiciary Chairwoman Helene Weinistein (D-Brooklyn), question the accuracy of the data used to predict the savings, and counter that the focus should be on improving care, rather than limiting liability. With increased patient care, malpractice litigation will necessarily decline. Better patient care also obviates much of the need for greater pain and suffering awards, as less pain and suffering will occur when greater care is taken of patients.

Dr. Laura Ellenson can see both viewpoints of the argument. Dr. Ellenson is both a pathologist, and the mother of a son who suffers from cerebral palsy as a result of medical negligence. The Ellenson family has already won a malpractice lawsuit, so one could argue that, at this point, Ellenson has more stake as a potential defendant doctor than as a potential plaintiff. In her view, the greater good is compensating families who have experienced the irreperable harm caused by negligently performed medical procedures.

Capping pain and suffering damages for victims of negligence or medical malpractice punishes the victims, rather than correcting the system. In our view, when greater care is taken by medical professionals to avoid malpractice and negligence injuries, the system will correct itself with far greater accuracy than tort reform legislation will accomplish.

For a more detailed discussion of the issues presented by the proposed tort reform and its potential impact on victims of medical malpractice, as well as taxpayers, please read Eric Turkewitz’s recent Journal News Op Ed Article, Cuomo’s medical malpractice ‘reform’ will hurt victims and taxpayers.

Website Resource: Doctor with disabled son is no fan of governor’s plan to cap malpractice suits, NY Daily News, Denis Hamill, March 13, 2011

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