Better Late Than Never: Medical Malpractice and the Statute of Limitations

Of the $3.6 billion in payouts made to plaintiffs involved in medical malpractice lawsuits across the United States last year, 21 percent—in excess of $763 million— was paid here in New York, a state that’s home to just 6 percent of the country’s population, according to a 2013 analysis by Diederich Healthcare. Total payouts in the next state down, Pennsylvania, were less than half that—just over $316 million.

Downstate New York also claims the highest medical malpractice insurance premiums in the country—between $170,000 and $225,000 per year for obstetricians and gynecologists practicing on Long Island and in New York City’s outer boroughs. And although collective rates for these and other practitioners fell by an average of 1.9 percent around the country in 2013—the sixth straight year they’ve decreased—premiums rose by 4.8 percent in New York.

This is the backdrop for the fight over medical malpractice laws, which insurance and medical industry lobbyists, as well as tort law reformers, see as antiquated and ripe for abuse. New York is one of just 15 states with no limit on awards for noneconomic or “emotional” damages, resulting in huge payouts to victims of malpractice. And although Gov. Andrew Cuomo’s 2011 budget included a $250,000 cap on such damages, the proposal got buried in the state Legislature.

“These trial lawyers flood over $1 million into the political system every year, and they prop up a lot of bad laws,” said Tom Stebbins, executive director of the Lawsuit Reform Alliance of New York in Albany. “We have incredibly low standards of evidence, and they continually try to push for lowering them even further.”

One factor is New York’s reliance on the Frye standard of admissibility of evidence in court, which requires that a technique be “generally accepted” in the scientific community. Stebbins wants the state to use the so-calledDaubert standard, which gives a judge the power to determine whether the evidence is scientifically valid and relevant, and also requires expert witnesses to demonstrate that their conclusions are based on sound scientific methodology.

While adoption of the Daubert standard in New York is a long shot, the Lawsuit Reform Alliance will be advocating for higher standards of evidence in the next legislative session, namely a rule that would require lawyers to disclose the identity of their expert witnesses at a predetermined time before trial.

“Right now there is no timing of disclosure for expert witnesses,” Stebbins said. “So if you’re defending yourself, you don’t know who will be testifying against you. You don’t know if that person is a world-renowned physician or a disbarred physician or a physician at all … and without knowing, the defendants don’t know the veracity of the case against them, and they often move to settle bad cases.”

Another tort reform initiative that is getting more attention is opposed by the medical and lawsuit reform lobbies. Currently the period during which a victim of malpractice can sue a doctor starts on the date when a medical error occurred. In 44 other states the clock starts ticking at the “date of discovery,” the time when the patient realizes he or she has a problem.

Legislation that has been introduced is popularly known as “Lavern’s Law” in New York, for Lavern Wilkinson, a Brooklyn woman who died from cancer in March after doctors at Kings County Hospital failed to report a chest lesion documented in an X-ray a few years earlier. Wilkinson, the mother of a 15-year-old with autism, had no recourse to sue because the statute of limitations—two and a half years at private hospitals and one year and 90 days at city-owned hospitals—had already run out.

The bill died in the Legislature last session when its sponsor, Brooklyn Assemblywoman Helene Weinstein, put it on hold for next year.

“It is inexplicable, when you apply it to a set of circumstances, that a person’s right to bring suit expired before he knew he had a right,” said Robert Danzi, a medical malpractice lawyer and president of the New York State Trial Lawyers Association. “I don’t think there is a rational argument that can be made when you put it into the equation of notice and fairness.”

A recent report from the investigative journalism outfit ProPublica sheds light on a new study claiming that 210,000 to 440,000 patients die each year in the United States after suffering a preventable harm in the hospital that abets their death. They point out that if true, this would make medical errors the third-leading cause of death in the country.

Still, Stebbins is opposed to “Lavern’s Law.”

“What it would do really is it would allow for lawsuits, ancient lawsuits, to stay in the system for years and years,” he said. “And then if somebody 10 years after surgery decides that the surgery didn’t work, or that they have pain again, they can then move to recover for a surgery that’s been effective for 10 years. Right now there are no controls that would prevent somebody from suing, say, 10 years later.”