Doctors Rally For a Remedy

By James M. Odato and Cathleen Crowley, Staff writers
Times Union.com
Wednesday, March 5, 2008

ALBANY -- Showing open hostility toward Assembly Democrats, about 1,500 doctors paraded through the Capitol on Tuesday complaining about a "crisis" of unaffordable malpractice insurance brought on largely because of the potential for uncapped pain-and-suffering awards. Spilling into both theaters at The Egg, the doctors of the Medical Society of the State of New York applauded, and even rose from their seats, to commitments from Gov. Eliot Spitzer and Senate Majority Leader Joseph L. Bruno to overhaul the malpractice system.

Any mention of Assembly Speaker Sheldon Silver or any members of his conference, who did not appear before the group, drew jeers and boos. The Democrat-led Assembly has been painted as overly supportive of trial lawyers and clients who sue doctors.

Spitzer said a task force including his staffers, lawmakers, consumer representatives and doctors has been talking for months. He said he hopes to announce a proposal this month similar to one last year that cut workers' compensation insurance rates 20 percent.

"We will alleviate the pain; that is the pledge I make to you," Spitzer said.

He would not say if he is seeking tort reform that would cap awards for pain and suffering, which has been sought for years by doctors' groups and fought by trial lawyers.

Insurance Superintendent Eric Dinallo told the group that his office, in concert with the Health Department, will fashion a plan for Spitzer that aims to enhance the quality of care, ease the threat of gigantic lawsuit awards, subsidize the cost of malpractice insurance and stabilize the insurance industry. Currently, just three carriers offer malpractice insurance to New York physicians, and all are technically insolvent.

"This was not business as usual," said Gerard Conway, senior vice president of the society. He said malpractice rates rose by 14 percent last July, and Dinallo is warning he may need to assess doctors to raise $1.5 billion to help bail out the industry. More rate increases are predicted.

Doctors rallied in the rain on the Capitol steps and many wore white coats that they later left behind as a reminder they are still seeking help. Speakers at the rally warned that doctors will leave New York or stop practicing if the medical malpractice insurance rates don't stop rising.

Robert Goldberg, president of the society, said it was perhaps the most forceful showing by doctors in 25 years because their profits are being drained due to legislative inaction.

Dr. Richard Peer, a Buffalo surgeon who serves on the state's Task Force on Medical Malpractice Liability and is a past president of the society, said he doesn't expect a major change. Silver, a law firm associate, acts as if he is "a plaintiff's attorney," he said.

"There's no reason to practice medicine in New York any more," said Dr. Peter Sosnow, who practices emergency medicine at Albany Memorial Hospital. "You can go to other states and not have these problems."

Speaking among the throng assembled in the packed Hart Theater and televised to the spillover crowd in the Swyer Theater, Dr. Herb Ausubel, a Valley Stream internist who said he has been practicing since 1954, said if changes passed in the Senate in 1976 had become law, "New York state would be a premier place to practice medicine instead of a dung hole ... It will take Gov. Spitzer to override Sheldon Silver." The crowd applauded.

Later, Silver said: "People are entitled to come here and say what they want." He told reporters a fraction of the medical community gives faulty care and the state needs to do a better job weeding out poor practitioners.

Bruno called the issue "a priority ... on everybody's front burner" and necessary to attract and retain doctors.

In some downstate communities, obstetricians and neurologists pay between $200,000 and $300,000 annually for malpractice insurance.

Spitzer's task force sent a variety of suggestions to him, the governor said. Recommendations supported by the medical society include:

Capping jury awards for pain and suffering at $250,000, like Texas and California. New York has no cap.

Creating a no-fault compensation fund for babies who suffer neurological injuries at birth.

Lowering the amount of insurance that doctors need to qualify for additional insurance from the state. Now, doctors must buy $1.3 million of coverage to get the $1 million in "excess relief" from the state. The society recommended lowering it to $1 million.

Creating a forum where doctors can confidentially talk about errors to improve patient care.

Requiring an independent doctor to sign the "certificate of merit" that allows a malpractice lawsuit to go forward. Currently, a lawyer signs the certificate.

Create a medical court that handles malpractice cases exclusively.

Patient advocates from the New York Public Interest Research Group said the malpractice crisis in an insurance industry problem. "We need to audit the medical insurers," said Russ Haven, legislative counsel for NYPIRG. The consumer group and trial lawyers want more attention on patient care.

James M. Odato can be reached at 454-5083 or by e-mail at jodato@timesunion.com.