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It was a backroom deal by the hospital association with their special interest lobbyists

Cuomo's malpractice award cap proposal questioned

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State Lawmakers examined Governor Cuomo's proposals to change the health care system at a joint legislative budget hearing Thursday.

The most controversial of those plans is a proposed cap on medical malpractice awards of $250,000. Karen DeWitt reports.

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Reported by

Karen DeWitt
NYS Capitol Correspondent

Cuomo’s Medicaid redesign panel, known as the MRT, comprised of stakeholders in the health care industry, decided to, among other things, cut reimbursements for hospitals and other health care providers by 2% across the board.

The plan is supported by the largest coalition of the health care industry, the health care workers union SEIU 1199, and Greater New York Hospital Association, who say they are willing to make necessary sacrifices in a bad economic time.

“The MRT recommendations are good recommendations and worthy of consideration,” GNYHA’s President Ken Raske told legislators at the budget hearing.

The support of the hospital-union coalition is a boost to the new governor. In the past, New York governors have feuded with the groups over proposed cuts, and the health care industry has run negative television ads that weakened the former governors. The new alliance between Cuomo and the hospitals and unions averts a potentially damaging battle. 

The Medicaid panel decided to pull more savings, proportionately, out of the home health care industry, cutting payments by $700 million dollars.

But perhaps the most controversial of the Medicaid panel’s proposals is to institute a $250,000 cap on medical malpractice awards for pain and suffering. It could save hospitals hundreds of millions of dollars a year, and might lower insurance premiums for doctors.  That recommendation has angered some lawyers. Steve Younger, the President of the New York State Bar Association, says the decision was made without any input from the other side of the issue, the victims of medical mistakes.

“It was a backroom deal by the hospital association with their special interest lobbyists,” Younger said. 

Younger questions whether the governor can even legally make such a sweeping policy change in his budget, even under the more liberal interpretation of the governor’s budget powers in the court decision in Pataki v Silver, which said the governor could insert language into his budget that implemented some policy changes.

He says the Bar Association is not against reform of the state’s medical malpractice laws, his group represents both defense attorneys and lawyers for health care providers accused of medical errors. But he says the changes should be in legislation that is the result of a thoughtful and more public process.

“It shouldn’t be done by simply taking away people’s rights indiscriminately,” said Younger, who said alternatives include special health care courts to mediate disputes, as recommended in the federal heath care reform.

“Saying that somebody whose life is taken away by a bad doctor is worth the same thing as a broken kneecap, and that will be the cap for all time, is unfair and discriminatory,” Younger said.

Many Senate Republicans support the medical malpractice cap, including Seantor Martin Golden of Brooklyn, who praised Cuomo’s Health commissioner, Dr. Nirav Shah, in the legislative budget hearing. But Finance Committee Chair Senator John DeFrancisco said hospitals should work harder to prevent medical errors instead as a way to bring down costs.

But the proposed cap on pain and suffering awards  will face some opposition in the Democratic led New York State Assembly, which often is allied with the Trial Lawyers lobby.

“There is concern among some of my colleagues,” said Assembly Majority Leader Ron Canestrari.

Assembly Speaker Sheldon Silver was more circumspect. Silver, who is a partner in major personal injury law firm, says he respects the Bar Association, but wants to look at everything “carefully” first.

Younger, with the Bar Association, predicts an “onslaught of litigation”, if the cap is implemented as part of the budget.

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