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Another Voice: Medical malpractice needs more thoughtful reform

By John Bartimole

The New York State Legislature is considering a bill that, at first glance, represents a positive outcome for the state’s citizens when it comes to their rights regarding medical malpractice, but, in reality, opens the door to higher costs, fewer physicians and an overburdened legal system. The bill under consideration has passed in the state Assembly and is under revision in the state Senate, as S.911.

Currently, those who believe they have been wronged by a physician or dentist have a period of 2½ years from either the date of the injury or the date of the last treatment for which there has been continuous treatment of the injury. The proposed legislation would allow the plaintiff to file suit 2½ years from the date that the victim knew or should have known of the injury, for up to 10 years.

While no one in the medical profession would argue with a patient’s right to seek redress for malpractice, the current window is more than sufficient to allow an injured party to determine if there was malpractice, especially considering the extended period of time allowed by the “continuous treatment” provision. Current rules also include important statute of limitation exceptions for injured children.

The proposed legislation would open a Pandora’s box of testimony on both sides of any malpractice argument that would be blurred by up to a decade of time – or longer – since the alleged incident occurred. Moreover, an already-burdened New York State court system would be further stressed by an influx of decade-old allegations of malpractice.

The unintended consequences of this proposed legislation are also severe: Because of the already-uncapped malpractice settlements allowed by New York State, insurance premiums for doctors are already among the highest in the nation.

Passage of this legislation would ratchet up premium costs even higher, discouraging new doctors from practicing in New York and driving existing doctors to other states. Recruitment of new physicians to New York State – especially in rural areas – is already a daunting challenge because of low Medicaid reimbursement rates and high malpractice insurance premiums. This proposed legislation would only make that challenge more daunting.

Again, anyone who believes he has been wronged by a medical malpractice deserves the right to have that case argued in court. The current law allows a generous period of at least 2½ years to “discover” the potential malpractice. Stretching that to a decade would do little to improve patients’ rights and, in fact, would likely diminish the number of physicians willing to practice in New York State, and that is a benefit to no one.

John Bartimole is president of the Western New York Healthcare Association.