Medical malpractice lawsuit bill stalls in state Senate

ALBANY — A bill that would allow more patients with cancer, HIV and other serious maladies to sue for medical malpractice has been overwhelmingly approved by the state Assembly, but it stands a dwindling chance of even getting a floor debate in the Senate.

Behind this stalemate in these last seven days of the 2016 legislative session is a titanic battle of two of Albany’s biggest lobbying forces: doctors and lawyers.

Currently, patients can sue for malpractice only within 2 1⁄2 years “from the date of the act, omission or failure complained of last treatment,” even though symptoms might not appear in that time. The proposal would reset that window to begin after a patient discovers the health problem.

People who say they are caught in the middle include Elissa McMahon, a 46-year-old mother who is facing late-stage cancer after she said it was misdiagnosed for two years, and the husband and daughter of the late June Dreifuss of Greenlawn, who died at 43, two years after, her husband says, breast cancer was missed in her annual mammogram.

McMahon, who worked as a social worker and lives in Massachusetts, said medical treatment in 2012 at a New York hospital, which included cancer screening, misdiagnosed the cause of her back pain. More than two years later, the cancer was detected by a second physician, three months after the deadline by which she could sue the hospital, which she said had given her a clean bill of health.

For Dreifuss, breast cancer had spread to her bones before she was accurately diagnosed and treated, according to her husband, Michael. While she was being treated, their 6-year-old son, James, was diagnosed with brain cancer. Her son died in 2008 and June Dreifuss died three months later.

During that time, the family had focused on treatment for June and their son, not contemplating a malpractice suit. They didn’t know the legal clock was ticking.

“When you have cancer, you don’t think about malpractice. You think about hospitals and treatment,” Michael Dreifuss said in an interview.

With two weeks left in the legislative session, the bill faces unlikely passage despite widespread support. The Democrat-led Assembly approved the bill, 120-25. It has 38 co-sponsors in the Senate — more than the 32 votes needed to pass legislation.

But a spokesman for the Senate’s Republican majority, which under Albany’s rules controls the flow of legislation, said it’s unclear whether the bill will advance.

The bill died in the Senate last year. This year the bill hasn’t budged from its initial committee since January, despite the clout of its primary sponsor, Senate Deputy Majority Leader John DeFrancisco (R-Syracuse).

The bill isn’t in the pipeline that could get it a floor debate before the scheduled end of the session on June 16. DeFrancisco didn’t respond to requests for comment.

Democrats criticized the standstill.

“It’s a critically important reform that unfortunately is being bottled up, despite the fact that the majority of senators are sponsors,” said Sen. Michael Gianaris (D-Queens).

The Medical Society of the State of New York — the lobby representing physicians — opposes the measure. It cites a study that predicts a big spike in malpractice claims if the measure is adopted. That will drive up New York’s already high medical malpractice insurance rates for physicians and hospitals as well as drive up the already high cost of health care insurance for New Yorkers, the group argues.

This month, the Medical Society placed ads and met with senators to fight what it calls a threat to the “already precarious stability of many New York hospitals and medical liability insurers.”

The trade publication Emergency Physicians Monthly said New York has among the highest malpractice rates in the nation because of frequent, high-payout cases.

During this two-year legislative session, the Medical Society contributed more than $92,000 to the Senate Republican Campaign Committee, with more to individual senators, including more than $4,000 to Senate Majority Leader John Flanagan (R-East Northport).

The Hospital Association of New York State contributed another $159,000 to the Senate Republican campaign in the last two years along with another $11,000 to the Independent Democratic Conference, which works with the GOP majority.

On the other side, the New York State Trial Lawyers Association counters that cancer, HIV and other diseases can go undetected after a failed diagnosis well beyond the 2 1⁄2-year window to sue. These patients are left without recourse to pay for care and suffering from a past mistake by a health care provider, the civil suit lawyers argue.

The Trial Lawyers Association alone contributed $364,100 to the Democratic Assembly Campaign Committee.

“It doesn’t work in the public’s interest,” said Doug Muzzio, a political scientist from Baruch College. “Thirty-eight votes should bring it to the floor (in the Senate). That fact that they don’t have a mechanism or don’t have the guts to do it is awe-inspiring — one sits in awe of the way Albany operates.”

Supporters of the measure say more time is needed because several cancer screenings are recommended only every three years. “That meant cancer ran amok in my system for two years,” McMahon said in an interview. “I have a very poor prognosis.”

McMahon said she has advanced cancer in her back and liver, and now is concerned about how her 15-year-old son, Jack, will continue without her.

“I’m just trying to do the best I can because my life is over at 46,” said McMahon, now living with her sister. “I really have to leave some kind of protection and provision for my son.”

By Michael Gormley

michael.gormley@newsday.com@GormleyAlbany

Michael Gormley has worked for Newsday since 2013, covering state government, politics and issues. He has covered Albany since 2001.