New York State, by virtue of the national malpractice crisis and particularly favorable state laws, is facing the reality of drastic malpractice rate increases, specialties where most doctors face multiple suits, and pressure for doctors to avoid or leave NY.

New York is one of 18 states designated by the AMA to be in liability crisis. The crisis makes access to obstetricians, orthopedists and neurosurgeons more difficult. Patients have to travel greater distances and wait longer to see specialists. For neurosurgery, some emergency rooms in community hospitals do not have round the clock coverage and patients are sent out significant distances to receive emergency care. This delays care, sometimes with tragic results.

This crisis was born of more lawsuits being filed, juries who don't understand complicated medicine and decide heavily weighting sympathy for impaired patients, and truly spiraling awards. The chilling numbers are that 70% of neurosurgeons in NY have been sued in the past 5 years, an average of 3 times each. As pointed out by the state professional society, with the majority of neurosurgeons being routinely sued, how can the principle “deviation from the accepted standard of care” mean anything? If two thirds are deviating from the standard, who sets it and what is it?

You better sit down to consider how jury awards rose a staggering 350% in last four years from an average of $1.7 million to almost $6 million. And New York "won" the claim to seven of the ten highest jury verdicts in the US.

This has forced premiums way up, with neurosurgeons the highest. The past two years they increased 24.3% for neurosurgeons, and with changes in excess liability protection and a loss of dividends, added another 50%. (For New York, MLMIC is the largest carrier in the state and since it is a mutual company, there are no highly paid executives or stock holders who expect to get rich on profits). Physicians who cost the company too much are pushed into an insurance pool where the rates double. Currently, neurosurgeons in NYC and Westchester
pay over $160,000 a year,in the Bronx over $190,000 and over $200,000 on Long Island. Those forced into the pool pay in excess of $400,000. With increasing practice expenses and decreasing reimbursements, the premiums become impossible to afford.

Assembling to work on many of these issues, the New York State Neurosurgical Society held a Medical Tort Symposium September 20, 2004.
Fighting to protect patient health care and allow neurosurgeons to practice, the Neurosurgical Society proposed the following reforms:

• Require expert witness identification before trial and allow examination of the expert before trial as is required in federal court and 47 other state courts. the The courts hold the expert accountable for providing scientifically based testimony (Daubert rule in federal court).
• Bifurcate medical malpractice cases into a liability component and an awards component.
• Require expert’s signature on certificate of merit (presently when filing a suit, a plaintiff makes medical claims of injury and causes of said injury without sworn expert validation).
• Cap non economic damages $250,000.
• Take neurologically impaired issue out of the tort system, and create a medical court that relies on determination by specialized judges rather than juries, advocated by Common Good.

Why are these particular reforms important? They focus on problems other states have solved, and resolutions that appear practical.

Because of the high jury verdicts, neurosurgeons have considerable pressure to settle, to avoid risking their personal assets even if the case is defensible.

This drives up tort costs and encourages unscrupulous attorneys. A vicious cycle spawns more non-meritorious suits to be filed. Also of importance, this litiginous environment creates more anxiety and stress for neurosurgeons. The result is an adversarial doctor-patient relationship and the practice of more defensive medicine. Tests are ordered that strengthen the patient’s chart but are not essential in caring for the patient. The cost estimate per year to the country is $100 billion dollars.

The New York State Neurosurgical Society found by an anonymous survey that with an additional 20% increase in insurance premiums, half the neurosurgeons in New York would limit the scope of their practice, leave the state or retire. If found personally liable for $100,000 to $200,000, 67% would retire or leave. This is a crisis of devastating proportions. where finding neurosurgical care would become almost impossible, and patients would have to travel to neighboring states.

Neurosurgeons and the larger medical community must act, but even they cannot do enough alone, the public and the legisalture must help.

The medical profession can take some important steps:
1) Hold experts accountable to give accurate testimony. (New York is one of only two or three states in the country that do not require that the identity of the medical expert be revealed before trial as required in federal court and in all other tort cases). Withdraw of board certification from board certified experts whose testimony has been reviewed and deemed false and/or misleading would have an impact.
2) Counter sue attorneys for bringing frivolous suit, something almost impossible to accomplish with our present system. We have recommended that physicians join the organization, Medical Justice, to help with this approach.

But much greater impact needs a change in the medical tort system.
1) Cap non-economic damages at a maximum of $250000, (This has proven effective in other states such as California).
2) Separate trials of neurologically impaired infants out of the tort system all together.
3) Change the entire medical tort system and establish a separate health court. The public needs to understand the situation they are facing and clamor for change by calling and emailing their elected officials and voting for those who support strong, effective and equitable tort reform.

"As brain surgeons, we urge the public to use their head and demand tort reform."

See the New York State Neurosurgical Site for more detailed information.