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Illusory medical malpractice reform in New York

The The New York Times documents a pilot program of "judge-directed negotiation" in New York where medical malpractice cases are assigned to an experienced settlement judge early in the process, one of many programs the Obama administration supports as an alternative to damage caps. It's certainly a good thing when truly injured plaintiffs can recover faster. And the program can certainly reduce litigation expenses by allowing the parties to come to a quicker assessment of the value of the case.

But that value is still dictated by irrational factors such as the expected sympathy of the jury (as one anecdote in the story reveals without any comment on the resulting injustice) and previous outsized awards given by New York juries. Without a fix of that underlying problem in New York law, New York doctors are still going to be facing outsized malpractice expenses. And because, as Lester Brickman documents, plaintiffs' attorneys' fees are rarely reduced by the fact that the attorney reached settlement quickly rather than after lengthy litigation, the program may have the perverse effect of making relatively meritless medical malpractice litigation more profitable. A federal Agency for Healthcare Research and Quality official estimates a $1 billion annual savings from the program, but it's far from clear that he has accounted for the countervailing effects: if you make litigation cheaper, you get more of it.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.