Op-Ed – Time to reform medical liability system; ‘Grieving Families Act’ is not the way to do it

By Samuel Flemister, MD

Samuel Flemister

As reported in a recent Times Union news story, Governor Hochul continues to contemplate signing a measure (S74A/A6770) that would significantly alter New York’s wrongful death laws.

As written, S74A, known as the “Grieving Families Act,” vaguely identifies who’s eligible to recover damages in wrongful death claims and the types of losses and damages for which plaintiffs may receive compensation.

The legislation would impact all areas of liability, including medical liability, and lacks important payout caps adopted by many of the nearly 40 other states with these types of laws.

It’s no secret that New York’s medical liability system is broken, failing both practitioners and patients. It’s wasteful, costly, inefficient and inconsistent.

Based on those concerns, the New York State Society of Orthopaedic Surgeons (NYSSOS) for years has joined a vast chorus of organizations in calling for the development of a comprehensive package of medical liability reforms that improve patient access to care, enhance patient-physician communication, facilitate improvement of patient safety and quality of care, reduce defensive medicine, decrease liability costs and fairly compensate negligently injured patients.

S74A will do little to facilitate these goals. In fact, one recent actuarial study has estimated that this legislation could increase New York’s already high medical liability premiums by as much as 40%.

Moreover, Diederich Healthcare’s 2020 report identified New York as the national leader in malpractice payouts, which in 2019 exceeded $661 million. The study further found New York second in the nation on a per capita basis in payouts.

Advancing the legislation as written will only fuel more unpredictable and inequitable compensation amounts from case to case that are not necessarily related to medical negligence or adverse events.

But the most troubling issue with the legislation is not the dollars, it’s the impact that these already high costs have on patient care.

More than 30 hospitals already receive extraordinary financial assistance from the state to sustain patient care services, and if this bill is signed in its current form, we risk hospital, emergency room, primary care and urgent care closures.

These consequences will most severely impact safety net care providers in underserved communities, placing those with below-average access to quality care at risk and compromising the social equity the bill’s proponents seek to achieve.

The Governor should use a veto as an important pause to reconsider a more balanced approach and bring New York into alignment with other states that have applied necessary and reasonable restrictions to similar legislation. Otherwise, the bill will reverse the state’s current investments in its health care workforce, threaten retention and growth in this sector of our economy and harm New Yorkers across the state by jeopardizing access to vital health care services.

This would include orthopaedic high-risk patients such as the elderly or persons with physical trauma.

For these reasons, NYSSOS has joined with numerous other organizations and industries to urge Governor Hochul to veto this bill.

We also encourage policymakers to address liability reform with a more thoughtful and balanced approach to achieve comprehensive reform as other states have recently done, proving that consensus can be forged to protect patients as well as the health care system and physicians.

To provide a more meaningful context, consider that in her inaugural address Governor Hochul pledged to address what she termed “the affordability crisis in New York State.”

This is a critical concern as a new census report found New York had the greatest population loss of any state between July 2021 and July 2022, with 180,000 New Yorkers leaving.

Enacting S74A will only further incentivize an exodus the state can ill afford by driving insurance cost increases in nearly every sector, including health insurance, automobile insurance and virtually every type of liability insurance.

A veto of S74A provides the Governor with a clear opportunity to address this crisis. We encourage her to do so, swiftly.

Samuel Flemister, MD, is president of the New York State Society of Orthopaedic Surgeons and a board-certified orthopaedic surgeon practicing in Rochester, New York.