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William C. Altreuter
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Thursday, March 24, 2011

The best thing about being a member of the New York Bar Association's CPLR Committee is that I get to watch a lot of really smart people make really intelligent arguments. Sometimes the things we discuss are so arcane that only members of the CPLR Committee care enough to argue about them, but nearly all the time these are topics that everyone should care about. Right now the New York State Legislature is considering changes to the way medical malpractice litigation is handled. There's a lot of back story to it, but apparently med mal reform is being offered as part of an overall redesign of Medicaid. It looks like the med mal stuff is in there to make some of the things that the medical industry doesn't like a bit more palatable. The proposals include a $250,000 cap on non-economic damages in medical malpractice cases; the creation of a certificate of merit requirement which would the oblige plaintiff’s attorneys to certify as to each named defendant that there was an expert review of the case by an expert in the same specialty as the defendant; and change discovery rules in med mal cases to require expert witness disclosure and expert depositions. There has been a fascinating back-and-forth on the CPLR Committee's listserve, and I think the arguments against this legislation are worth setting out here. Some of these are points I've raised, and some a paraphrases of others' points. The other side of the coin is, basically, caps on damages are good because juries make awards that are too big; expert depositions are the rule in federal court and other jurisdictions; and, more or less, plaintiffs' lawyers are big crooks.

Caps on damages in particular types of claims are illogical. I cannot understand why someone who is unfortunate enough to sustain an injury at the hands of a medical professional should be entitled to anything less than the full measure of damages to which a similarly injured person run over by a truck would receive. In addition, caps discriminate against low income individuals, including retirees, housewives, and children.For high income wage earners, attorney fee awards (and the significant disbursements necessary in these types of lawsuits) may be fairly readily deductable from the economic damages which a jury might award. Low income wage victims of malpractice will not be made whole by judgments because the attorney fees and expenses will have to come out of money the jury intended to be used to compensate for out of pocket costs.

The expert certification requirement is loathsome. Lawyers are obliged to act in good faith, and frivolous claims are subject to sanction. It is not at all uncommon to have to resort to discovery in order to obtain all of the material necessary to prevail on a medical malpractice claim, and imposing this pre-action requirement-- which is actually more rigorous than what a plaintiff is obliged to prove at trial-- would have the effect of screening out potentially meritorious claims. Lawyers who take and prosecute med mal cases without making inquiry as to whether the matter rises to the level of malpractice usually live to regret the expenditure of time and money which they undertook on a whim. These cases are expensive, and they are defended with vigor. The numbers speak for themselves: the overwhelming (I've heard 98%) number of med mal cases that go to verdict result in no-causes. I have a problem with the idea that catastrophically injured people, who are confronted with medical expenses and all kinds of other stuff while dealing with their loss of income should be burdened with additional costs for "certification" of their claims' merit. Lawyers screen their cases pretty carefully I've found. Because we are the bank most of the time few of us are willing to take on unnecessary risk. The certification requirement is simply an attempt to create an economic disincentive for bringing otherwise worthwhile, or at least arguably worthwhile, claims. It operates to prejudice the rights of poor people, and it probably consolidates medical malpractice claims in a small number of firms. That also prejudices potentially legitimate claimants, by limiting their freedom to choose counsel.I have no doubt that there are fraudulent claims. I saw the set up to one yesterday.  In my experience  they are very rare, and I suspect that they are particularly rare in the context of medical malpractice. Med mal claims themselves are increasingly rare, so this legislation, which penalizes legitimate claimants and honest lawyers, impresses me as bad medicine for a nearly non-existent condition.

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