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Jordan Margolis
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A New and Improved Way to Burden Victims Instead of Those at Fault: NY Public Health Law 2999-h[1]

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New York’s Governor, Andrew M. Cuomo, has taken revenge on opponents of his mission to enact caps on non-economic damages in medical malpractice cases. Gov. Cuomo successfully garnered legislators’ support to enact a new statute- Public Health Law §2999-h[1]- which provides for a state-sponsored fund to pay the medical expenses of those New York infant-victims of medical malpratice who suffer from severe neurological damage. Here’s how this all began:

In January 2011, Gov. Cuomo created the Medicaid Redesign Team (MRT) in an effort to reduce the cost of New York’s Medicaid program and "achieve measurable improvement in health outcomes . . . and a more efficient administrative structure." (See Gov. Cuomo’s 1/5/11 State of the State Address.) Unfortunately, but not so surprisingly, this team is solely comprised of hospital and insurance representatives. No patient advocates, representatives of malpractice victims, or bar associations were included in MRT’s taskforce. MRT endorsed Gov. Cuomo’s Neurologically Impaired Infant Medical Indemnity Fund, an in doing so, enacted regressive legislation that mandates victims of catastrophic injuries apply for their life-long medical aid on a yearly basis, through beaurocrats instead of the court system, effectively stripping those most in need of their basic rights to fair compensation. This fund is set to go into effect on October 1, 2011.

Joel Stashenko of the New York Law Journal informs us that MRT’s proposal to impose a cap of $250,000 on non-economic damages for any victim of medical malpractice was denied (before the budget was adopted on March 29) by the NY Assembly thanks to opponents such as the New York State Bar Association.

In his op-ed, Stashenko also offers us information straight from the horse’s mouth. Jason Helgerson, Gov. Cuomo’s chief Medicaid reform adviser, has been said to describe the Infanct Medical Malpractice Fund as "the best of both worlds" by providing medical costs on an annual basis to injured children, "while their parents or guardians can pursue medical malpractice actions on the basis of emotional distress and other losses." Helgerson expects that between 150 and 200 babies will qualify annually for the new fund. Explaining the "need" for this new fund, Helgerson touts that "courts tend to err on the side of victims when calculating medical costs 10 or more years down the road, in part because better and more expensive medical treatments regularly become more available."

The flaws in Cuomo and MRT’s public policy, right-winged theories behind the fund are rampant, as are the flaws in how the fund will actually be administered. Stashenko explains:

"Medical care will be decided on a case-by-case basis. In the event the fund is reduced to 20 percent or less of its annual size, the law contains a default stipulation allowing suits to be brought for medical expenses.

The services of some health-care professionals, such as home health aides, are to be paid according to the prevailing Medicaid rate, which opponents said would prohibit many patients from getting the top-notch treatment they deserve.

The newly created entity that will emerge from the combination of the state insurance and banking departments . . . will be responsible for administering the fund."

Public scrutiny and litigation on specific regulations is much anticipated and much deserved. This piece of special legislation serves to protect hospitals and doctors who made mistakes, rather than protecting the victims–innocent babies who were catastrophically injured when brought into this world, and will be suffering from their doctors’ mistakes for the rest of their lives. Now these babies and their families will be forced to fight a second battle. Instead of receiving a jury verdict or an out-of-court settlement, these victims will have to navigate an inconsistent Medicaid style system at the mercy of bureacrats who will provide their treatment options. Jeff Adams of the Adams Law Firm PC of New York has said it well: "A family that suffers devastating loss due to medical negligence should be permitted to make their own treatment decisions. They should not be victimized twice." See http://www.injurylaw-ny.com/Caps-and-Gov-Cuomo-Truth-and-Fallacy.shtml

Blair Horner, the legislative director of New York Public Interest Research Group (NYPIRG), admonishes that MRT’s "approach is the wrong course to minimizing medical errors. He contended that strengthening the state’s standards-of-care for obstetrical and birthing practices would go a longer way to reducing costly hospital errors." Likewise, Thomas A. Moore, a New York Law Journal columnist, wrote in his 4/5/11 column:

"The fund will deny some deserving children health care at the highest quality and force their parents or guardians to wrestle bureaucrats for coverage for some procedures."

"The new law makes ‘vague and non-substantive’ demands on health-care providers to improve the quality of care while burdening malpractice victims and their families."

"The Medicaid task force opted to advocate a bill that impairs the rights of children victimized by negligent obstetric care rather than one that would have prevented children from becoming damaged and would have achieved greater savings."

The damages victims of catastrophic brain injuries suffer are not intangibles. They are not non-economic pain and suffering. Making the victims bear the brunt of their doctors, nurses, and/or hospitals’ mistakes is fundamentally unfair and should not be tolerated.

Jeff Adams urges us to join the opposition and fight the good fight. For more information on what you can do to help those most in need receive fair compensation for their tragic injuries, click here.

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