New York Medical Malpractice

Under current law, the military cannot be held accountable for any sort of medical malpractice as it pertains to active servicemen. U.S. representative Maurice Hinchey from New York state is proposing a bill that would reverse the current law and make the military accountable for any medical malpractice that occurs. Entitled “The Carmelo Rodriguez Military Medical Accountability Act”, it is currently being debated by the House of Representatives.

Hinchey said his bill would make sure "the military, like any other health care institution, takes steps to improve care so that no one else ever has to go through what the Rodriguezes have endured." The legislation would continue to exempt medical professionals responding to "combat scenarios," he said.

Are you familiar with the Feres Doctrine? The New York Law Blog has some interesting information on the little known law which relates to medical malpractice and the military:

Last year, CBS News reported on Marine Sergeant Carmelo Rodriguez and his battle with the medical malpractice system in regards to the military. While serving in the Marines, Sgt. Rodriguez was misdiagnosed by military doctors, saying a malignant melanoma was actually just wart. Years later, Sgt. Rodriguez was medically discharged due to his cancer, and due to a little known law called the Feres Doctrine, Sgt. Rodriguez’s family cannot bring a medical malpractice case against the government.

According to many, the medical malpractice crisis in New York state is reaching fevered pitch. In today’s Staten Island Advance, Dr. Joseph DeSena Richmond writes a letter to the editor on the subject urging citizens of the state to write to their local representatives and ask them to help with with problem.

As with most issues, however, a clear illustration of the facts is often needed to prove a point. Sadly, the latest illustration involves one of our finest young OB/GYN physicians, someone with whom I have worked on countless occasions and who I and many others consider to be one of the best the OB/GYN world has to offer.

Unfortunately, because of the incredibly high malpractice insurance premiums he has been faced with over the last few years, he has made the difficult decision to drastically pare down his practice. As of January, 2009, Dr. Alex Giannakakos will no longer be practicing obstetrics, nor will he perform any more GYN surgeries, limiting his practice to office-based GYN and related procedures.

There is relief coming for doctors who are seeking a respite from the soaring medical malpractice rates in New York state. A press release on the New York state website declares “Governor Patterson announces one-year freeze on medical malpractice rates for physicians in New York state”. To read the full article, visit NY.gov.

A new medical malpractice bill was signed by New York state governor David Patterson recently that allows the Department of Health to make doctors who have been charged with malpractice in the past known to the public. From the blog at Trolman, Glaser and Lichtman:

Prompted in part by Long Island doctor Harvey Finkelstein, who has been charged in the past with 11 malpractice suits, the law will enable the public to make an informed decision when choosing a doctor to ensure the physician has a clean record. Sponsored by state senator Kemp Hannon of Garden City, who is chairman of the Senate health committee, the bill will also allow the Office of Professional Medical Conduct to use any past medical malpractice indiscretions by a doctor to begin misconduct probes.

Is there any avenue of legalities outside of medical malpractice should you need to pursue it? A man in Bangor, Maine has filed a lawsuit against Mayo Regional Hospital not for medical malpractice, but under a labor law.

[Robert] Olszewski claims he went to the hospital’s emergency room twice within 17 hours on Aug. 6, 2007, for pain in his chest, headache and fever and was not given appropriate medical screening. He later went to a Bangor hospital where he was admitted for a mild heart attack.

Attorney Michael J. Waxman of Portland, who is representing Olszewski, said the lawsuit is not a medical malpractice suit, per se, but triggers a federal statute called the Emergency Medical Treatment and Active Labor Act. The labor act initially was passed as an anti-dumping statute since hospitals were then turning away people who didn’t have insurance or money, Waxman said Thursday. When someone goes to the emergency room, the hospital must do an appropriate medical screening to determine whether the person is in fact in an emergency condition. If so, the patient cannot be transferred until stabilized, he said.

This is a great situation when it is very helpful to know what your rights are. If you go to an emergency room seeking treatment, you must be treated.

Curious about the difference between civil and criminal medical malpractice? An article for OBGManagement.com highlights the differences between the two and which might apply in your case.

Happily, criminal prosecutions for malpractice are rare in the United States—far, far less common than civil suits for malpractice. Nevertheless, criminal prosecutions do occur and seem to be increasingly frequent in recent years. Consider that, between 1809 and 1981, approximately 15 criminal cases involved the prosecution of a physician for medical malfeasance1; by contrast, between 1985 and 2004, another 15 cases were heard in US courts—every one involving the death of one or more patients.2

The two cases that I present in this article, both involving ObGyns, illustrate the distinguishing features of criminal and civil malpractice in the eyes of the law. My goal? To answer a question you may be considering: Am I safe from criminal prosecution for harm that comes to a patient at my hands?

Check out the rest of the article

here

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AmericanProgress.org weighs in on medical malpractice lawsuits:

Myth: Medical malpractice lawsuits are little more than predatory lawyers destroying honest doctors; caps should be set on the amount awarded to accusers.

Truth: Although the malpractice system is deeply flawed, setting caps deflects attention from patient safety and would likely not reduce frivolous lawsuits or costly premiums.

Medical malpractice liability is in need of reform, but claims of a nationwide crisis are overblown. Malpractice claims and insurance premiums vary by specialty and geographic area—doctors in obstetrics or surgery tend to pay higher premiums, for example. What increases occur in malpractice premiums can be linked primarily to a sluggish economy. In fact, malpractice costs represent less than 2 percent of total health care spending. There is little correlation between malpractice claim increases and premium increases.

Enacting caps on awards threatens individual rights to compensation for harm resulting from preventable medical error, mostly because so-called frivolous lawsuits represent only a small portion of claims and awards by juries. Focusing on tort reform deflects attention from patient safety in a system where victims are not fairly compensated and errors are not properly prevented. The solution to rising costs should instead consist of more emphasis on evidence-based medicine, independent screening, immediate disclosure of errors, and even a no-fault system of compensation.

Michael Rosenberg released the following in an effort to promote positive legislation:

“With just four days remaining before the Superintendent of Insurance is set to impose another exorbitant increase to the already unaffordable cost of medical liability insurance, physicians across New York State are urging the State Legislature to return to Albany to take action to prevent a health care access disaster.

The situation facing New York’s physicians is dire. They are caught in an ever tightening squeeze between rapidly rising overhead costs and declining reimbursement. New York physicians are currently struggling with the 14% malpractice insurance increase that was imposed last July, as well as the cumulative 55-80% rise in premium costs over the last five years. At the same time, physicians face ongoing efforts by private and public health insurers to constrain reimbursement, including a draconian 10.6% cut to their Medicare reimbursement, set to be implemented July 1 unless Congress takes action in the next 48 hours to prevent the cut.

Yet despite these problems the Legislature left Albany without taking any action whatsoever to avert the impending disaster. For many physicians, the increase expected to be promulgated next week will be unaffordable; and, consequently, they simply will be unable to practice.

Hopefully meaningful reform in New York will happen and won’t occur at the cost of quality health care for its citizens.

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