Letter to NYS Senate Judiciary Committee, Malpractice Reform Legislation- May 17, 2011

May 17, 2011

Dear Senator,

I am contacting you to express opposition to legislation that will overturn the Arons decision. I agree with HANYS that it is unconscionable that after enacting a key malpractice reform, creation of the Medical Indemnity Fund (MIF), the Legislature is now considering measures that would undo the progress made less than one month ago. While the MIF applies only to cases involving neurologically-impaired infants, the pro-plaintiff attorney legislation would apply to all malpractice cases.

By overturning the Court of Appeals' 2007 Arons v. Kutkowitz decision, this bill (S.3296-A, DeFrancisco/A.694-A, Lancman) would seriously worsen the tort litigation system. It would end a process that the court system has supported for decades, by prohibiting defense counsel in a malpractice lawsuit from privately interviewing a plaintiff's treating physicians. Plaintiff attorneys frequently interview treating physicians and this bill would prohibit defense counsel from doing the same thing. It would apply to cases pending or filed 30 days after the date the bill is signed into law by the Governor.

Enactment of the MIF was a positive, significant first step for the following reasons:

• The MIF pays for the medical care of neurologically-impaired infants; it does not shift the balance in our litigation system; 
• The MIF does not change how malpractice cases are brought, how cases are heard in court, how much awardees receive, or how much trial lawyers are paid; and
  overturning the Court of Appeals Arons decision would fundamentally tilt the balance of fairness in our court system.

Enactment of any of the medical malpractice bills currently under consideration would take the system two steps backward. In addition to HANYS, the bill is also opposed by Greater New York Hospital Association, the other allied associations, Medical Society of the State of New York, American Congress of Obstetricians and Gynecologists, malpractice insurers, defense counsel, Healthcare Trustees of New York State and others.

Thank you for your support with this serious concern. I am available to discuss any and all of this topic.

Sincerely,

Member, Board of Trustees
New York Hospital Queens