More New York Courts to Focus on Medical Malpractice

By MICHAEL VIRTANEN | November 14, 2011

New York courts specializing in the state’s 4,000 medical malpractice cases filed each year have begun expanding following the success of a Bronx judge in settling cases early.

The approach, shown to cut court backlogs and save money, has been extended to Brooklyn, Queens and Manhattan, with some Erie County judges getting trained.

“It was proving to be a cost savings to hospitals and directly impacting the indemnity insurance of doctors,” New York Chief Administrative Judge Ann Pfau said.

Starting Dec. 1, Pfau will become coordinating judge of the court system’s medical malpractice segment. The pilot program is using a $3 million federal grant to train more judges in medical issues. Pfau herself will take cases in Brooklyn, where she is an acting state Supreme Court justice in the commercial division. She said it would be good to make the program citywide and makes sense to extend it to Long Island.

Bronx Justice Douglas McKeon, who began focusing on malpractice cases 15 years ago, said he has helped settle more than 1,000 since, with 12 to 15 cases now on the calendar monthly for intense discussions. Once the city’s Health and Hospitals Corp., which runs 11 public hospitals, created its own claims and law department in 2006 and explored settling cases sooner instead of later, the program “really took off,” with a 95 percent settlement rate for the corporation’s cases, he said.

Corporation deputy counsel Suzanne Blundi said they essentially revamped their whole commitment to patient safety, developing systems to improve care, manage claims and decrease payouts, which dropped from $196 million in 2003 to about $130 million last year.

The effort has entailed trying to investigate malpractice claims early on and also expediting settlements, Blundi said.

“If you have a matter that needs to be resolved, getting compensation to the injured person in a timely fashion is important. We see it as a continued relationship with our patients. … OK, there’s an error, and we’re going to help deal with it,” she said.

McKeon said it’s easier for the corporation as a municipal entity. “They don’t have investments they have to get certain returns on. They’re not an insurance company or one of these captive creations some hospitals put together,” he said.

Without close scrutiny by one judge, cases can come back several times before various judges with settlements discussed but doctors refusing to agree, McKeon said. “To me it’s a waste of court resources. … I always felt if you could extrapolate it across the state you could probably save a sizable sum of money.”

Now attorneys generally go through evidence discovery before serious settlement talks begin, Pfau said. “In a malpractice case, all of that discovery is very expensive.”

In one recent case, where a woman was hit by a car, taken to a city hospital and ended up brain damaged, a settlement was reached for about one-sixth of the initial demand and without the hospital admitting liability, Pfau said. At issue was whether the pressure in the patient’s head had been appropriately monitored.

Arthur Levin, director of the Center for Medical Consumers, an advocacy group, said he has questions about the special courts and their negotiated settlements that should be studied. “Even though people are not forced into it, I have no idea how coercive or not the pitch is,” he said.

Leslie Kelmachter, president of the New York State Trial Lawyers Association, said McKeon has put together a very good program, that malpractice issues are often straightforward, and the lawyers can support earlier settlements on behalf of their clients, the injured victims, as long as they are fair. “There shouldn’t be any pressure on the plaintiffs to settle. It should be voluntary,” she said.

It makes sense for the pilot program to target high-population areas with a large number of cases and high hospital malpractice costs, Pfau said. Many cases involve obstetrics and Medicaid patients, sometimes mothers coming to emergency rooms to give birth without any prenatal care, she said.

“What you’re finding is in poorer communities you’re getting higher incidence of this and in poorer communities you’re finding the huge verdicts,” said McKeon, a member of the medical malpractice reform working group of Gov. Andrew Cuomo’s team revamping Medicaid. He said other factors include lawsuits needlessly naming every doctor in a patient’s medical record who had little to do with the case, and preventive medicine’s increase in diagnostic tests, which create more opportunities for poor communications between diagnosing and treating physicians, he said.

Earlier this year, Pfau issued, and the Administrative Board of the Courts approved, new rules for the state trial courts on medical malpractice, calling for settlement conferences 45 days after court papers are filed indicating that the case is ready for trial. Only attorneys fully familiar with the case and authorized to settle it are to appear, and judges may also order insurance representatives and others with an interest to appear.

Federal data showed just over 1,800 medical malpractice payments statewide for $736 million in 2009, down from 2,400 payments for $822 million three years earlier. The New York Public Interest Research Group noted that 10 percent drop occurred even as the number of doctors practicing in the state increased to almost 65,000.

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