lohud: Pending liability legislation will jeopardize New York’s strained health care system

By: Bruce Moolinellli, Daniel Gold and Thomas Lee

Many hospitals across New York State are having increasing difficulty finding qualified physicians to staff their various essential departments. Often when patients arrive at their local hospital, they find that the physician that they need is no longer available at that hospital. The closest necessary physician may be miles or even hours away. To make matters worse, a bill on its way to Gov. Kathy Hochul’s desk will drive doctors out of New York State and undermine our already strained health care system. This means longer wait times in the ER, fewer OBGYNs to deliver babies and decreased access to mammograms and other vital tests.

Earlier this year, the Legislature passed a bill to radically expand recoverable damages in wrongful death lawsuits. This seemingly compassionate act will have severe unintended consequences According to an actuarial analysis by Milliman, Inc. this legislation will significantly increase the cost of medical liability insurance across the board, and hit the health care system especially hard with an increase of 40% to 45%. If the bill is signed into law, such a dramatic increase in operating costs will have damaging consequences for access to health care across New York.

Can you imagine your household bills increasing by 45%? With record inflation already raising prices for goods and services, such a heavy cost hike would undoubtedly cause significant strain on your household budget. But this increase may soon become a reality for New York’s doctors and hospitals if Hochul doesn’t veto this legislation.

The Empire State is widely known as one of the worst states to practice medicine due to its uniquely hostile liability environment. Doctors here already face far higher insurance costs than anywhere else in the country. This strains resources and discourages the establishment of new practices, leaving New Yorkers with fewer options and lower quality health care. Any additional increase in insurance costs would further burden doctors and hospitals — one as high as 45% will be catastrophic, shuttering practices permanently.

Specialized practices will be hit especially hard. That means that our most passionate and heroic doctors — who provide reproductive care and skillfully execute high-risk surgeries — will be burdened with even higher costs than they already face. This will jeopardize patients’ access to life-saving procedures and screenings and worsen health care outcomes across the state. Remaining physicians will face dramatically higher operating costs, which will be passed down to patients in the form of higher bills and longer wait times.

In addition to increasing costs, lawsuits contribute heavily to burnout and stress among physicians — the same doctors who have already faced significant challenges throughout the pandemic. And the threat of lawsuits often leads doctors to practice what is known as “defensive medicine,” or ordering extraneous tests and avoiding high-risk treatments in order to head off future lawsuits. As a result of this resource-wasting overtreatment, health care costs increase and patients are left with fewer choices.

The risk of litigation is significantly more severe in New York than elsewhere in the country. Our state courts have a lower standard for evidence than federal courts, this is the only state in the nation that allows expert witnesses to remain anonymous ahead of litigation (leading to “trial by ambush”), and a massive 9% interest rate on monetary judgments during the appeals process. Just last year, Hochul vetoed a bill that would make it easier for plaintiffs attorneys to collect that 9% on certain judgments. She specifically noted that she was unwilling to increase costs to medical providers and local governments that often get roped into lawsuits. But this bill will be even worse.

In a 2017 survey from Johns Hopkins, 85% of physicians reported that fear of litigation is the primary driver of overtreatment, raising health insurance costs across the country. In fact, the report’s senior author noted that "unnecessary medical care is a leading driver of the higher health insurance premiums affecting every American.” As well as increasing premiums, defensive medicine prevents some patients from receiving care in appropriate settings — a 2019 study found that malpractice insurance costs led more women to give birth outside of hospitals as obstetricians sought to protect their practices.

New York has made significant strides in improving health care access and affordability in recent years. This bill would be a tremendous step backward. To protect the integrity of our health care system and ensure that people can get the care they need, we must urge Hochul to veto this misguided legislation.

Bruce Molinelli, M.D., Daniel Gold, M.D., and Thomas Lee, M.D., are board officers at the Westchester County Medical Society. Molinelli serves as president, Gold as legislative committee chair, and Lee as treasurer.