New York Program Aims to Speed Up Malpractice Resolutions

December 8, 2011
Aubrey Westgate

A New York-based program could help minimize the expense and stress malpractice lawsuits have on physicians and their insurers. But how feasible is it?

A New York-based program could help minimize the expense and stress malpractice lawsuits have on physicians and their insurers. But how feasible is it?

The approach, pioneered in 2002 and dubbed a “judge-directed negotiation,” requires a judge with expertise in medical matters to become involved in a medical malpractice case as soon as a lawsuit is filed, according to the Washington Post. This judge supervises the entire malpractice case and brings the involved parties together to discuss the case and hopefully, help bring about a settlement.

What happens in a typical malpractice lawsuit is very different. A pre-trial discovery phase occurs - which can last for months or years - and generally no single judge is assigned a case until much later in the court process. In the New York approach, since a judge becomes more involved in a case at the beginning of the lawsuit, the hope is that he can help move the process along more quickly.

Richard Tisinger, Jr., a malpractice attorney based in Carrollton, Ga., told Physicians Practice via e-mail the new approach could be “effective” but the key is the skill of the judge handling the cases.

“Having an experienced and knowledgeable judge can make a big difference in moving the case more quickly and getting the parties to discuss resolution of the case,” he said. “The judge can't force anyone to settle, but can be persuasive to the parties about what a jury might do in the case. The system will not be a panacea, but it will help.”

The new approach is already showing signs of promise. A typical medical malpractice case takes three years from the date a claim is filed until the case is closed, Michelle M. Mello, a professor of law and public health at Harvard’s School of Public Health, told the Post. Cases heard in the New York program typically close within six months to nine months.

Attorney Randy Cangelosi, based in Baton Rouge, La., told Physicians Practice in an e-mail that the program is a “positive way” to promote efficiencies in the handling of malpractice cases.

“Anyone who litigates regularly will tell you that any idea that seeks resolution sooner rather than later is a positive one,” he said. “Also, early resolution of cases with a mediator or judge that is knowledgeable, or has special knowledge, in medical matters can help to promote and benefit the interests of the patients and the healthcare providers, while benefiting the legal system as a whole.”

Still, Cangelosi cautioned the program might not be practical for all malpractice cases. The key issue, he said, is that the approach presumes that the healthcare provider or the plaintiff wants to settle. Of course, this is often not the case.

“A lot of physicians would rather try the case than settle because it is important to them to defend their care and their reputation,” he said. “If there is a settlement, that will very likely subject the healthcare provider to reporting the settlement to the National Practitioner Data Bank and/or the state medical licensing board, which is a significant deterrent to numerous settlements.”

So far, some 200 malpractices cases have taken part in the New York Program, though not all have completed it. Policy experts say the program could provide a national model for handling medical liability cases, according to the Post.

Let us know: What do you think of this new approach to medical malpractice cases?