Without much doubt, the number one category of cases in which we receive telephone solicitations for legal consultations is that of medical malpractice. Probably 95 percent of these inquiries result in our taking the time to chat with the potential client and then to explain why, even in cases of rather clear medical negligence, there is no basis to bring a suit.
Why is this? The answer is that, contrary to the insurance industry’s expensive advertising campaign, the doctors have “won the war” in New York State on the medical malpractice front. How have they done this? These are some of the critical ways:
a) Unlike any other type of personal injury case in New York State such as a car accident or slip and fall, a lawyer may not even file a medical malpractice case unless and until he or she has obtained all the medical records, reviewed the medical facts and the legal issues, referred the case to an independent expert for a formal review (an expensive and time consuming process that must result in a positive expert finding of malpractice and significant harm to the patient).
b) An industry-wide commitment not to settle even the most clear cut cases of doctor-inflicted injury until the case is literally on the eve of trial (unlike most other personal injury cases where a lawyer who is able to prove a clear cut injury and strong fault can achieve a fair settlement in timely fashion for his client).
c) Special rules that limit the lawyer’s contingency fees to as little as one half of the normal contingency fee percentage that is permitted in all other types of injury cases in New York.
Because of the tremendous investment of time and money in bringing these cases, medical malpractice cases are only brought by the most experienced and best trial lawyers in this State. They are also defended by among the very best of the civil defense bar (with all due respect to the automobile insurance company’s lawyers, those that defend doctors and hospitals in medical malpractice cases, are paid three or four times as much and are regarded as extremely competent advocates). Despite the fact that these cases are brought by the very best trial lawyers and have been reviewed and certified to be the result of serious medical negligence by independent medical experts, almost three out of four jury verdicts in this State are in favor of the doctor or the hospital.
In the face of this, the insurance industry has created a web of lies and myths about a “litigation explosion” and alleged punitive damage awards which have shattered New York’s economy. This dishonest campaign of the insurance industry has been ignored by the media (see, however, “Selling Out Injured Baby Rights”, Ralph Nader, www.nader.org).
The fact of the matter is that there are no punitive damages permitted in New York State for medical negligence. The vast majority of the seven figure medical malpractice awards/settlements are in situations involving avoidable birth defects to brain-damaged and other permanently handicapped babies who are victimized — usually while still in the womb — by careless doctors or nurses. These are, obviously, significant exceptions. Nevertheless, these few large awards — almost invariably well justified — are thrown up by the insurance industry to mislead, not only the public, but the medical practitioners themselves to create an atmosphere of fear and of litigation run amok.
Now Governor Andrew Cuomo, in a most cynical fashion, has attempted to curry favor with the insurance industry in Albany (the strongest lobby in our State Capitol) by submitting a budget which would include, buried in the various expense items of the State, a $250,000.00 cap on pain and suffering awards in birth defect and other brain-damaged baby cases in New York.
It is urged that all citizens contact Governor Cuomo’s office as well as your local Assemblyman and Senator and tell them that you oppose Governor Cuomo’s medical malpractice Proposal Number 131.