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Malpractice Cap Emerges as Key Issue in Budget Debate


social service cuts
Photo by Barry Solow

Ten years ago Jeremiah Taylor walked into a New York City hospital thinking he was going to undergo routine surgery on his lower back. Things did not go as planned.

Hospital staff didn't monitor his blood pressure while he was under anesthesia, and as a result it dipped to dangerously low levels -- so low that his optic nerves died. When he was wheeled out the back door of the hospital and given a month’s prescription for sleeping pills, he was totally blind. His life irreversibly changed. Gone was his privacy; now he would require help to do the things that used to seem so simple.

"I have to ask people I don't know for help getting to the bathroom," he said. "Can anyone really tell me my pain and suffering is worth only $250,000?" asked Taylor.

Taylor finished the legal wrangling over his own incident years ago, but now he has come to Albany to lobby against the recommendation that that non-economic damages in malpractice suits be capped at $250,000.

The caps represent one small part of the package assembled by Gov. Andrew Cuomo's Medicaid design team. The team's recommendations would trim $2.3 billion from Medicaid for the upcoming fiscal year. All these proposals made their way to Cuomo's budget, as well as the Senate's, and are now being debated in the capital. The caps, though, have met staunch opposition from the Assembly, and many expect them to emerge as a deal breaker in this year's budget negotiations.

Tip of the Cap

Hospital organizations like the Medical Society of New York, the Greater Hospital Association of New York and the Healthcare Association of New York State support the cap. These groups say the cost of malpractice insurance is skyrocketing, thanks to multi-million dollar malpractice awards, and make doctors leery of taking on high-risk patients. Further, the increases, they say, will force doctors to leave the state or even their profession. Hospital associations estimate that the caps will save them $700 million a year. They charge that trial lawyers oppose the cap because it would limit what they could earn from a malpractice suit.

Vehemently opposed to the measure in New York are lawyers groups such as the State Bar Association, as well as advocacy groups such as the AARP, Citizen Action and the New York Public Interest Group. They say the cap was proposed largely as a way to get hospital groups to support the rest of Cuomo's Medicaid plan.

"When doctors and hospitals were presented with the question, 'What do you want to sign onto this Medicaid program?’ their holy grail is to be unique from all other members of society -- to be immunized from their mistakes and consequences. When the genie pops out of the bottle and says, 'You get one wish -- not three,' this is exactly what they wished for," said Assemblymember Rory Lancman.

Assemblymember Deborah Glick said the proposal will limit the tools the public has to punish physicians for their negligence. "The way we punish people, the way we correct incorrect behavior in our society is by either sending someone to jail or by financial punishment,"said Glick. "If you take away the financial punishment, the system has no reason to correct itself. Doctors have no reason to be more careful,"she said.

Advocates on both side point to California, which has had a similar cap on non-economic damages in malpractice cases since 1975. The same figure was used: $250,000. Critics point out that by now the number should have been adjusted for inflation and would stand somewhere around $900,000. The number has not been adjusted for inflation in California, and the New York proposal also does not take it into account.

Proponents of the measure say that California's malpractice insurance rates have only risen by half the national average since the law took effect. Yet the number of malpractice cases per doctor in California has remained the same, and in almost half of malpractice cases judges have had to reduce non-economic awards suggested by juries that have wanted to to give plaintiffs greater awards.

Making Hospitals Safer

Lancman says the stakeholders negotiating the Medicaid agreement did not seriously consider other routes of reducing malpractice costs. This, he said, would include working to reduce incidences of malpractice so that there are fewer lawsuits.

Lancman has sponsored a bill called the Medical Malpractice Savings Act to require that the health commissioner establish a set of rules for every hospital to ensure that each one has a comprehensive obstetrics program to reduce malpractice. The Lancman bill was inspired by a "recent report by an obstetrics team at New York Presbyterian Hospital that detailed how it reduced the department’s malpractice payouts by 99 percent.

Bill Ferris of the AARP agrees and blames the omission on the lack of "consumer representation" on the Medicaid redesign team. “There should have been more discussion on how to reduce medical mistakes, not on capping the damages," he said.

Ferris' organization is lobbying against the caps because, according to Ferris, seniors rely on non-economic rewards-- damages for pain and suffering-- to get compensation in malpractice suits. "Seniors are generally unemployed and rely on Medicaid and social security. This would limit rewards for pain and suffering, and economic rewards are generally based on future salary -- seniors don't have that. This does away with how they can be compensated for a medical mistake.

Making a Point

Glick has introduced legislation that would limit hospital administrators' pay to $250,000 a year. Glick said she is trying to make people understand that if $250,000 is enough to cover a life of pain and suffering caused by a hospital error than it should be more than enough for a hospital CEO to make in a year.

"I did this to raise the point that there is another side of the balance sheet -- one that is quite costly," said Glick. "I don't think it will pass, necessarily. ... There are a lot of people who have supported the bill, but hospital administrators are not so happy. I've stepped on some toes there."

Glick said she thinks Cuomo is picking and choosing which “special interests” to back and uses different standards.

"Gov. Cuomo says he doesn’t believe that school districts can't weather these cuts. He doesn't believe that there isn’t waste and corruption in these school districts. Well I don’t believe insurance companies will reduce their rates if this cap goes through. I think they will just take the money and run and find another excuse for why premiums are so high," she said.

With the three major legislative leaders currently in heated negotiations, it is unclear whether the caps will make it through as part of the budget. Cuomo has made it clear that he isn't keen on giving up anything in his budget and has told lawmakers that if a deal is not reached he will push through his budget in extenders.

If a deal is a reached, the caps could be a critical part of making it happen. Majority Leader Dean Skelos has told reporters that he could not support a budget deal that included with a millionaires tax or rent regulations; both of those things are near and dear to Assembly Speaker Sheldon Silver's heart. Silver is a lawyer and tends to be friendly toward trial lawyers. However unions that represent hospital workers also are close to Silver, and the hospital associations warn that if the caps don;t go through they could be forced into layoffs. It may be possible that the caps will be done away with as a concession to the powerful Silver.

At this point it is unclear. But things are much simpler to Taylor, who plans to come to lobby on the issue until there is no more hope. He says he wants others to have the right to sue for an amount that compensates them for having their lives altered by negligence.

"Right now, if I hit you with my car you can sue me, but I can't sue a doctor for more than $250,000? I will fight for other people’s rights to compensation. Why not look at reducing malpractice? Why aren’t doctors subject to tests? I think they sat in a back room and made this deal to take away people’s rights to compensation. It is just un-American."

Council Approves Bill to Regulate Crisis Pregnancy Clinics


Photo (cc) Courtney Gross

In an emotionally charged moment, the City Council approved legislation Wednesday to force pro-life crisis pregnancy clinics that do not perform abortions to disclose what services they do and do not provide.

Supporters of the legislation allege these facilities deliberately deceive pregnant women who visit clinics to get medical services. These clinics do not disclose in advertising that they refuse to perform abortions, and staff members wear scrubs even though they have no medical training, the bill's backers say.

"Be proud of what you are and what you do," said Council Speaker Christine Quinn at a rally celebrating the legislation's approval. "I don't understand why anyone would oppose this legislation."

But many do. Opponents of the measure claim forcing clinics to immediately list the services they provide violates their First Amendment rights. Opponents promised to sue the city after the mayor signs the bill, which he is expected to do.

"No city or government agency has ever fined us, sued us or cited us for any violations of law," said Christopher Slattery, the founder and president of EMC Frontline Pregnancy Centers, which has 12 locations in the five boroughs. "The city transit system has accepted our advertising for years. If it is deceptive, why is it accepted?"

The council approved the bill by a vote of 39 to 9 with one abstention.

Right to Disclose?

Both sides dueled in opposing rallies and protests Wednesday. Supporters of the bill, which include Planned Parenthood and NARAL Pro-Choice New York, carried signs reading, "I love pro choice New York." Opponents of the bill, who led a sing along outside of the council's meeting, thrust up posters emblazoned with, "#1 Enemies of the First Amendment." Below the sign had photos of the bill's sponsors.

First introduced in 2010, the bill has attracted an unusual amount of attention despite its small impact. According to council officials, the legislation would only impact about a dozen clinics.

It also comes at a time when Planned Parenthood has come under fire in Washington and could lose hundreds of millions of dollars in federal funding.

Council officials say they are attempting to target clinics that do not provide any medical services, and are not attacking pro-life counseling centers.

Under the legislation, these clinics would have to post a sign disclosing whether they have a licensed medical professional on staff and whether they provide or refer to prenatal care, abortions and emergency contraceptive.

Photo (cc) Courtney Gross

This information would also have to be included in advertising.

Opponents are confident they will never have to post those signs. The courts struck down similar legislation in Baltimore earlier this year, determining it was against the First Amendment. Council officials say their proposal would hold up in court, because it targets a very narrow group of crisis pregnancy clinics.

At the Emigrant Savings Bank Wednesday, the council's temporary home, council members traded barbs and tears -- an exchange that pit the First Amendment against a woman's right to choose.

"Contrary to the speaker's comment this bill is in fact more restrictive than the speech requirements in [the Baltimore bill], and I say that as someone who practiced constitutional law and who is actually admitted to the Supreme Court," said Councilmember Dan Halloran, a Republican of Queens. "This is an unconstitutional infringement. It will be struck down."

Councilmember Melissa Mark-Viverito fired back.

"Our country is continuously being faced with controversial issues, and it is important that we embrace measures that promote choice and democracy versus exclusion and degradation," said Mark-Viverito.

Some council members attempted to change the tone of the debate altogether -- pointing to the city's more than 40 percent abortion rate. They urged the council to focus on education as opposed to a debate on pro-life versus pro-choice.

Help for Liens

The City Council also approved legislation Wednesday, which would provide homeowners who are eligible for tax exemptions assistance with liens.

The measure strikes an appropriate balance between getting scofflaws to pay up and assisting homeowners who can't keep up with their bills, said the legislation's sponsor Al Vann. Under the proposal, homeowners will be given the option to pay off tax liens in installments for eight years with no down payment.

The bill could affect any homeowner in default for property taxes as well as sewer or water payments.

The bill also gives the council the authority to sell liens based on an emergency housing repair program, which targets deadbeat landlords.

Doc in the Box Touted as Solution to Healthcare Shortage


retail health clinic

With the Federal Patient Protection and Affordable Care Act -- the full name for "Obamacare" -- set to require that all Americans have health insurance, more people will seek medical care more frequently, health experts predict. The healthcare system is already overburdened, so a key question in New York, as elsewhere, is how can the system take in and treat the people who currently do see medical providers because they don't have the resources?

The Manhattan Institute, a conservative think tank, believes it has the answer. And it could be right in your local Duane-Reade.

The care would come from retail health clinics, for-profit health centers probably located in chain drug stores. These centers would treat people complaining of minor aches and pains, the type of things uninsured people or people who do not have access to primary care now bring to a hospital emergency room. The clinics also would refer patients to specialists if their problems turned out to be serious. The clinics build on some of the services drug stores already provide, such as flu shots and blood pressure testing, and their number has been growing in states such as California, Texas and Georgia.

Storefront Solution?

Manhattan Institute scholar Paul Howard, who once bashed the Obama administration's healthcare overhaul on the pages of conservative websites, has now accepted its existence. The author of the Manhattan Institute report on the clinics, Howard thinks expanding them would help provide care for the 1.2 million New York state residents who will get health insurance under the federal legislation.

"They can offer a terrific access point for busy people," Howard said in an interview. "They often partner to make referrals to a primary care.

The Manhattan Institute study said that when Massachusetts instituted its healthcare law, which is similar in some respects to the federal measure, "expanded coverage led to longer waiting times for physician appointments and a 10 percent increase in emergency room use." Noting that "New York could experience similar problems," the report says an "expansion of retail-clinic utilization in New York could reduce healthcare costs by $350 million between 2011 and 2020 by reducing the number of unnecessary emergency room visits."

Manhattan Institute is not alone in singing the praises of these types of retail clinics. A study commissioned by the Rand Corp. in 2009 showed "no difference in the quality offered to patients visiting retail clinics, physician offices and urgent care centers."

The study's lead doctor, Ateev Mehrotra, a professor at the University of Pittsburgh School of Medicine, told MSNBC at the time: "These findings provide more evidence that retail clinics are an innovative new way of delivering health care. … Retail clinics are more convenient for patients, less costly and provide care that is of equal quality as received in other medical settings."

Changing the Rules

The push to bring these retailers into the state -- there are about 15 so far, according to Howard -- could spark some dissent from health groups. It would require removing the state's legal barrier that prevents for-profit corporations from getting medical licenses. The Manhattan Institute report also calls for getting rid of what it describes as "a costly certificate intended to prove that the health-care provider service will fill a need." This approval, it says, can "take time and often deters new clinics from opening in retail stores in New York."

The report notes that current state law "prohibits retail clinic operators from employing even nurse practitioners and other mid-level practitioners upon whom the cost-savings of the model depends." Currently, these practitioners, nurses who can diagnose ailments and prescribe treatments, need to be under a doctor's supervision. If the state ditches this requirement, retail health clinics could hire nurse practitioners to oversee operations. The institute advocates such a change.

Concerns About Care

But some groups have questions. The New York State Nurses Association, for example, supports the retail centers in theory, but opposes the current state legislation meant to bring more of them into the state.

"There isn't enough information known about how this would operate," said Deborah Elliott, the association's deputy executive director. "It would have to be clearly indicated who would be managing the primary care on these sites."

"It is not a substitute for primary care; it is an adjunct to primary care," Elliot said. "In the long run there could be some very valuable benefits from this."

Judy Wessler, the executive director of the Commission on the Public's Health System, was less than enthused about what Howard is proposing.

"It's as bad going to the emergency room," she said of the clinics. "There's no continuity of care. The person taking care of you doesn't know who you are. It's a very inadequate way of providing care, but it's cheaper than an emergency room."



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