Morris M. Auster, Esq.                                      Division of Governmental Affairs

Senior Vice President/                                                 MEMORANDUM  IN  OPPOSITION
Chief Legislative Counsel

 

ON ASSEMBLY FLOOR                                A.1386 (WEINSTEIN)

IN SENATE JUDICIARY COMMITTEE       S. 411 (DEFRANCISCO)

AN ACT to amend to amend the estates, powers and trusts law, in relation to payment and distribution of damages in wrongful death actions

This measure would amend the estates, powers and trusts law, to authorize an award in a wrongful death action to include compensation for grief or anguish, the loss of love and companionship, loss of services and support and the loss of nurture and guidanceThis bill will vastly increase the amount of recoverable damages in these cases far beyond the level and intent of the law when it was first enacted and as it has been applied for generations.  In light of the already outrageously high medical liability insurance costs facing physicians and hospitals, and the threat to access to care this poses, MSSNY strongly opposes this measure and urges that it be defeated.

The law currently allows the decedent’s estate and family members to bring separate actions - which inevitably become linked - to hold tortfeasors accountable for both economic damages and the pain and suffering caused to the decedent.  The decedent’s estate sues for both the decedent’s economic losses and damages for the pain and suffering of the decedent.  These pain and suffering damages are awarded to the decedent’s estate when the jury determines that the decedent experienced pain prior to death.    In virtually all cases, it is the decedent's family members who are the beneficiaries of these awards through their participation in the decedent's estate.  On top of this, family members can bring their own suit for economic loss - which includes the loss of consortium and damages for custodial care.

Any change in the law which would expand the permissible compensation to include concepts such as grief, anguish, and the loss of guidance will dramatically increase liability costs, insurance costs and, of course, the cost of health care in New York State.   Actuarial estimates have indicated that passage of this legislation could increase already outrageously high physician premiums by over 50%

Given the extraordinary costs of medical liability insurance that many physicians must pay, combined with the enormous changes in health care delivery and payment that is placing huge new financial pressures on physician practices and hospitals, it is irresponsible to consider legislation at this time that might actually increase these costs.  Many New York physicians already pay liability premiums that far exceed $100,000 and some even exceed $300,000!  

The timing of this legislation and other bills to expand tort liability could not be worse.  We now have multiple malpractice insurance companies operating in New York State that are facing serious financial jeopardy which can ill-afford to absorb the substantial costs of a brand new cause of action.  Moreover, with the US House’s recent passage of the AHCA, there is enormous uncertainty in our health care system because of proposals in the AHCA that could profoundly restructure New York’s Medicaid system. 

For many physicians currently struggling to keep their practices afloat due to the enormous changes taking place in health care delivery, this legislation could be the “final straw” to drive them out of practice and into other states. Many New York physicians pay liability premiums that far exceed $100,000 and some even exceed $300,000!  The cost of medical liability coverage for the 2015-16 year is:

  • $338,252 for a neurosurgeon in Nassau and Suffolk counties;
  • $186,630 for an obstetrician in Bronx and Richmond counties;
  • $141,534 for an orthopedic surgeon in Nassau and Suffolk Counties; 
  • $132,704 for a general surgeon in Kings and Queens counties, and
  • $134,902 for a vascular surgeon or cardiac surgeon in Bronx and Richmond counties.   

Moreover, malpractice payouts in New York State continue to be far out of proportion to the rest of country.  For example, a recently released report by Deiderich Healthcare showed that once again New York State had by far and away the highest number cumulative medical liability payouts ($711,718,250), nearly two times greater than the state with the next highest amounts, Pennsylvania ($374,018,550), and far exceeding states such as California ($263,874,600) and Florida ($248,911,150).    At the same time, New York had by far and away the highest per-capita medical liability payments in the country, far exceeding the second highest state Massachusetts by nearly 20%, the third highest state Pennsylvania by 23%, and the fourth highest state New Jersey by 26%.   Remarkably, it was more than 500% more than California!

It is little wonder that a recent analysis from the website WalletHub listed New York as the worst state in the country in which to practice medicine, in large part due to its overwhelming liability exposure as compared to other states in the country.

While physicians face these exorbitant costs, health plans continue to reduce payments to physicians by inappropriately denying, delaying and reducing payment for needed care.   Exacerbating these problems are the increasingly large patient balances that are accruing as a result of a significant increase in the use of high deductible health insurance plans.   At the same time, physicians face substantial new costs as a significant component of their revenue base will be conditioned on participation in often unwieldy value-based payment schemes both in Medicare and in Medicaid, including the need to invest tens of thousands of dollars to implement electronic medical record systems.    When factoring all these problems together, it is no surprise that regions all across New York State are beginning to see shortages in several specialties, according to reports issued by the Center for Health Workforce Studies.

With all these enormous changes occurring in patient care delivery, physicians need comprehensive reform of our flawed civil justice system and reduction in our medical liability costs, not legislation that increases costs and exacerbates existing problems.

This bill would do nothing to address the problems facing our health care system, and would instead make these problems worse.  Physicians need liability cost decreases, not increases!

For all of the reasons stated above, we urge that this measure be defeated.

                                                                        Respectfully submitted,

6/19/17

MMA - oppose                                                 MSSNY DIVISION OF GOVERNMENTAL AFFAIRS