December 30, 2017
Dear Governor Cuomo,
As President of the Bronx County Medical Society I feel compelled to comment on S.6800/A.8516, a bill that passed at the end of the session last summer but for all the wrong reasons. This bill is bad for the Bronx. Although we have some of the hardest working and best-intentioned legislators anywhere in NY state, the complexity of the medical care delivery landscape is perplexing even to those most intimately involved and our legislators don't always have time to obtain all the facts and sift through all the potential ramifications of every issue before acting. They listen to the loudest voice or the most frequently heard message regardless of reality.
S.6800/A.8516 referred to as “Laverne’s Law” is a hastily conceived legislative response to the sad case of Lavern Wilkinson. Ms. Wilkinson, treated at a public hospital, was not informed of a cancerous lesion present on an x-ray. Sometime later, when Ms. Wilkinson ‘discovered’ the cancer, it had already spread. She was unable to sue for medical negligence owing to the short 15-month statute of limitations that applies to public hospitals like the one that treated her. Had she been treated elsewhere in New York, with the standard 30-month statute, Lavern would have been able to sue. Sadly, she succumbed to this cancer.
The legislature could have solved Lavern’s medical liability ‘problem’ by simply extending the shortened statute against public hospitals to 30 months (like in non-public hospitals). Instead, they unreasonably extended the statute to date of discovery (as long as 7 years from treatment) to all venues. If this law is enacted, despite the unnecessary burden on all physicians and hospitals, patients presenting to public hospitals might still find themselves unable to sue. For example, a patient presenting to a public hospital for evaluation following a motor vehicle accident, not informed of an aneurysm on x-ray, would still be unable to sue after 15 months’ time. This bill, that would increase liability costs for physician practices by 15%, would not provide a remedy for many patients like Lavern.
Above and beyond the inadequacy of the legislation in solving the problem it is purported to address, the climate of medical malpractice insurance is exceedingly tenuous at this point in time. With PRI under fire by the department of financial services, the ousting of Anthony Bonomo, and Berkshire Hathaway taking over MLMIC, throwing a wild card into the mix is ill advised.
I know you have considered that this legislation will increase the malpractice premiums paid by physicians and I’m sure you have heard that medical malpractice premiums in New York State are already onerous enough--among the highest in the country. Furthermore, you probably know that New York state physicians already have by far the highest number of malpractice suits in the country as well as the highest per capita payouts. As a physician, I am of course not pleased about the prospect of paying more in premiums but this is not even the main issue.
The problem is that there are valid suits brought that are squeezed out by the system because the courts are so over crowded. Viable suits are left to linger for years and years which does no good for the plaintiff. From the physicians’ perspective, it is incredibly stressful. Physicians are no more comfortable in courtrooms than lawyers are in operating rooms. The practice of naming every physician in the medical record regardless of actions taken, culpability, or contribution to the alleged transgression further promulgates the expense and stress. It detracts from a physician’s primary focus which should be his or her patients. Do we really want to flood a med mal system that is already overwhelmed in a state that is already the most hostile to physicians?
Attracting physicians to work in New York State is becoming more and more difficult, particularly in the Bronx where malpractice suits are passed out like lottery tickets. In 2016 Wallet hub ranked New York 51 of 51 states including Washington DC in terms of attractive places to practice medicine. Many argue that we still have plenty of physicians who want to practice in New York. This is just not so. We have been lucky so far but the status quo is not sustainable. Every day established physicians grow more and more weary of the trial lawyer lobby constantly expanding their range. Ultimately the physicians entrenched in practice now will retire at the exact time when we have greatest need for physicians and who knows if they will be replaced and if so by whom? Docs who have no better alternative? At this point, each of the 49 other states IS a better alternative.
Governor, I appreciate the need for our patients and your constituents to have access to our tort system. My concern is that expanding the date of discovery as proposed in “Laverne’s Law” will have the opposite effect. The quantity of suits is likely to increase so dramatically that legitimate claims will be diluted by the masses. Expansion of the tort system is clearly a regressive action that exacerbates the multiple problems inherent in our healthcare delivery tort systems at a particularly uneasy time in the medical malpractice insurance arena. Many other states such as California, Texas and Florida, along with the majority of others, have put reasonable controls on liability awards to preserve some stability in their health care systems.
Thank you for your time and attention in this most difficult situation. Please veto S.6800/A.8516 and ask our law makers to come up with a balanced bill that addresses the multiple problems inherent in our medical malpractice tort system.
Michael A Pisacano, MD FACS
President, Bronx County Medical Society
2590 Frisby Avenue
Bronx, NY 01461