Published 11/1/2007
Heather Bennett, JD

Medical liability reform in New York State

In crisis, but hope is on the horizon

For the past several years, the medical liability environment in the state of New York has been spiraling out of control and has reached a crisis point. But it finally appears that the state government is realizing the extent of the crisis and is preparing to address it. As the reform efforts unfold, the New York State Society of Orthopaedic Surgeons, Inc. (NYSSOS) is taking an active role.

On Sept. 4, 2007, Gov. Eliot Spitzer convened the first meeting of the New York State Taskforce on Medical Malpractice Reform. NYSSOS is represented on the taskforce and has been asked to conduct a survey and report to the task force on the impact of the current crisis on the practice of orthopaedic surgery and on orthopaedic patients.

Few choices
Orthopaedic surgeons and other physicians practicing in New York have only three choices when it comes to purchasing medical liability insurance. Both the Medical Liability Mutual Insurance Company (MLMIC) and Physicians Reciprocal Insurance insure doctors in private practice; coverage from the Healthcare Insurance Corporation is available only in institutional settings.

The state operates a pool of last resort for physicians who cannot obtain coverage from one of these companies, but the premiums are prohibitively high; an orthopaedic surgeon might pay more than $250,000 annually. MLMIC policies for orthopaedic surgeons who practice on Long Island have annual premiums of $120,000 or more, which has led many physicians to make dramatic, substantial changes in their practices.

To quantify the crisis for the taskforce, NYSSOS requested orthopaedic-specific data from the three carriers. Table 1 is based on information from the largest carrier, which has 60 percent of the physician medical liability market. The figures are based on claims closed with indemnity payments between the years 1985 and 2005. (Defense costs and other related expenses are not included in this data.) The total payments for the 1,887 claims against orthopaedic surgeons were $373,853,874.

Possible remedies
Among the remedies being considered to heal New York’s medical liability problems are the following:

  • creating health courts
  • requiring arbitration for medical claims
  • establishing a no-fault system for defined classes of claims
  • placing caps on noneconomic damages
  • requiring certification and disclosure for expert witnesses
  • requiring certificates of merit
  • permitting structured settlements
  • amending the current joint and several liability laws
  • expanding immunity for physicians who deliver emergency care
  • enacting “I’m Sorry” laws

To quantify the impact of each of these changes on the practice of orthopaedic surgery, NYSSOS will analyze current data to ascertain instances when cases are brought following emergency care and other issues. The taskforce chairs—superintendent of insurance Eric Dinallo and commissioner of health Richard Daines—have requested that each of the proposed changes to the liability system be linked to “scoreable” indicators.

Effect on patient care
Earlier this year, NYSSOS surveyed our members to determine the impact of the current medical liability crisis on patient care. Nearly two thirds (64 percent) of those who responded reported that they have changed the way that they practice medicine.

Physicians are practicing more defensive medicine, including ordering more tests, referring high-risk patients to other doctors, taking a more conservative approach to treating fractures, creating more medical documentation, and documenting medical-legal conversations. Access to care is affected as physicians attempt to limit their liability by refusing to take emergency department call, limiting their scope of practice, refusing to accept referrals from colleagues or to treat patients who have difficult personalities, and moving out of high-risk areas.

The survey also showed how physicians are coping with the increasing costs of medical liability insurance. Some attempt to self-insure; others take on more patients and work more hours. The impact on patients can be felt as orthopaedic surgeons stop taking Medicaid patients, drop health maintenance organizations and indemnity insurance plans with low reimbursements, or raise their fees.

Due to the medical liability crisis, orthopaedic surgeons are no longer performing surgery—or are assisting only. They have gone from full-time practice to part-time practice; some have retired early or left private practice entirely. These changes have a serious impact on all of New York’s patients. NYSSOS is working hard to be part of the solution—and we will keep you informed as the process moves forward.

Heather Bennett, JD, is executive director of the New York State Society of Orthopaedic Surgeons. She can be reached at bennett@nyssos.org