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Lawyers object to malpractice caps

New York lawyers and consumer groups are pushing back against Gov. Andrew M. Cuomo’s plan to cap non-economic damages in medical malpractice suits.

“We are putting on a full-court press,” Stephen Younger, president of the New York State Bar Association, told Newsday on Monday.

Cuomo’s proposal would cap non-economic damages -- also known as pain-and-suffering awards -- to $250,000 and would create an insurance fund for babies that suffer brain damage at birth. The plans are among 79 ideas agreed upon last week by Cuomo’s Medicaid Redesign Team, and it accounts for more than $200 million of the $1.7 billion in state savings projected by the team.

Pain-and -uffering payouts often account for low-income, very young and elderly plaintiffs winning big awards in medical malpractice and other lawsuits. Other damages are calculated from a victim’s earnings and projected life span.

Kenneth Raske, president of the Greater New York Hospital Association and Medicaid Redesign Team member, called the measures “long overdue” last week before the panel voted on the package. The Health Department estimates the insurance fund and malpractice caps would save health care institutions $704 million, which would help them find the $640 million in cost savings the budget assumes of health care institutions.

But attorneys and consumer groups say the plan is beyond the scope of Medicaid, will affect people with private insurance and will prevent legitimate lawsuits.

Blair Horner, legislative director of the New York Public Interest Research Group, said Cuomo made a “naked political deal” with hospitals on malpractice to get their support for a painful 2-percent cut in Medicaid reimbursement.

“It’s appalling,” said Horner, who was distributing fact sheets around the Capitol showing that New York’s malpractice payouts have declined in in the past four years. Yet, malpractice insurance rates for hospitals and doctors have increased faster than inflation, which Horner said should be investigated separately.

Cuomo aides said the plans came after Medicaid hearings across the state.

"It is absurd to brand as a political deal an open process that produced meaningful results with shared pain on all sides,” said Cuomo spokesman Josh Vlasto in a statement. “Evidently, old-style Albany special interest attacks during the budget process have not ended -- they are merely being carried out by surrogates. In this case, Blair Horner is the mouthpiece for the trial lawyers.”

Younger said attorneys from across the state will be writing to Cuomo and lawmakers this week. He said they fear the changes will pushed through as part of the budget process, where lawmakers have less power to stop it, than as a separate bill.

In the past, the Assembly has blocked most efforts at tort reform. But Assemb. Richard Gottfried (D-Manhattan), the Health Committee chairman who sat on the Medicaid panel, has backed off his opposition to the team’s plan.

And Speaker Sheldon Silver (D-Manhattan), normally seen as a friend to trial lawyers because he is one, was notably circumspect when asked about the bar association’s statement and efforts Monday.

“I respect the bar association,” Silver said. “I haven’t seen their statement per se. But obviously the whole ... Medicaid task force is something we have to look at very carefully.”

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