New York City continues to strive toward a more expeditious, economical and fair way to resolve medical malpractice claims. The Washington Post reported yesterday that the New York pilot program to assign one judge to oversee an entire case from filing to trial is being expanded. 200 cases are now working their way through a process known as "judge-directed" negotiation, which allows sufficient oversight and guidance from a judge knowledgeable in medicine to assist the parties with pretrial events and possible settlement. It's goal is to keep costs down and to prevent a variety of judges, some inexperienced, from ruling on motions and otherwise interfering with a smooth and orderly end to malpractice litigation.
The program is funded in part by a $3 million grant from the federal Agency for Healthcare Research and Quality and is seen as a potential model for a national program to handle malpractice claims and litigation.
As reported previously here last year, five New Your City hospitals embarked upon a pilot program to reduce medical malpractice insurance premiums and related costs by divulging medical mistakes promptly, by making settlement offers swiftly, and by utilizing specialized "health courts" to resolve disputes and negotiate settlements before litigation is commenced. The participating hospitals are Manhattan's Beth Israel Medical Center, Mount Sinai Medical Center, New York-Presbyterian Hospital, Brooklyn's Maimonides Medical Center and Bronx's Montefiore Medical Center. The goal of the program, funded with $3 million of federal money, is to reduce medical errors.
The idea of specialized jurists and courts is not particularly novel. There are specialized tribunals like the Federal Court of Claims, the United States Bankruptcy Court, and the Federal Tax Court, which are specialized tribunals which hear only certain types of cases and whose judges bring significant knowledge on the issues before the courts. Indeed, many states have attempted something similar by creating health claims arbitration tribunals where cases must be filed as a prerequisite for state court litigation. But those administrative tribunals have no teeth, allow parties to waive out of the process at a very early stage, and are nothing more than clearinghouses meant weed frivolous claims out of the court system by requiring early expert "certification" that the plaintiff's case has merit.
Under the New York scheme, the judge assigned to the case serves as the "go to" person for all issues that arise during the case. The process eliminates much of the posturing that goes on during litigation, where each party boasts of the strengths of their case and the weaknesses of their opponent's. In the end, it appears the program is worthwhile, and the Washington Post reports on disputed liability cases which have settled without protracted litigation, although the data suggests that plaintiffs are receiving a lower settlement payout under the scheme.
Many states already require early mediation of malpractice cases filed in state court. With the right mediator, cases settle because the mediator understands the medicine and the parties' positions. Selecting the appropriate mediator can be a difficult task for lawyers, because some mediators are beholden to the institutional clients who defend many cases annually and who supply certain mediators with a significant income and caseload. Although some mediators are known for "getting the job done." there is sometimes a steep price plaintiffs must pay by way of significant concessions of case value which in some instances is not fair. The topic of the pros and cons of mediation will be left for another day.
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