Lohud.:To protect health care, NY lawmakers should take a collaborative, comprehensive approach

By: Jerome Craig Cohen

For the third time, lawmakers in Albany passed a bill that could further threaten access to our already strained health care safety net.

Gov. Kathy Hochul's decision to twice veto a bill that would have radically expanded liability and created the most expansive wrongful death statute in the nation exemplifies true leadership. While well-intended, the bill, as written, would have exacerbated existing healthcare disparities, forced patients to travel further for access to specialists, and imperiled the finances of medical services for the people who need them the most. We can’t make progress toward better health outcomes if the system our patients rely on is decimated by unsustainably high liability costs.

Unfortunately, despite Hochul’s earlier vetoes, the New York State Legislature once again passed legislation that would dramatically expand liability and threaten the stability of our healthcare system.

The latest bill is slightly different, but it does not reconcile the concerns Hochul expressed in her veto messages, which laid out her reasons for sending the bill back without her signature. As such, she should veto this version, too.

The latest legislation continues to be completely one-sided when balanced liability reform is needed. As doctors committed to the health and wellbeing of our communities, we have great sympathy for the grieving families this legislation seeks to help. But any changes to the law must also ensure the outcome does not hike insurance costs and enrich already wealthy personal injury trial lawyers.

In her veto messages, Hochul recognized the “significant unintended consequences” of expanding liability as proscribed in the bill without including any guardrails. She identified concerns that the bill “would increase already high insurance burdens on families and small businesses and further strain already-distressed healthcare workers and institutions,” which would be “particularly challenging for struggling hospitals in underserved communities.”

In her second veto message, she highlighted the “significant unintended consequences” of this proposal, including the impact to our community healthcare infrastructure because of the likely huge increase in liability costs it would face through larger lawsuit payouts. According to an actuarial study of the already vetoed bills, New York’s doctors and hospitals could have expected a 40% increase in their medical liability insurance premiums, which are already outrageously high. The study’s authors concluded this enormous increase was based almost entirely on the bill’s provisions around awarding of damages for “grief and anguish,” which remains in the latest legislation. 

For many struggling community hospitals and health care providers, these staggering increases would be far too great to absorb. Our already over-stressed hospital emergency departments, as well as healthcare providers in underserved regions, would be particularly hard hit. This means that lawmakers must strike a balance that ensures justice for families without risking access to care for our most vulnerable communities.

The fact is that many other states that have permitted these expanded types of damages in wrongful death lawsuits have also adopted guardrails — laws that contain limits on overall damages. Any legislation to expand lawsuits must be balanced to prevent runaway jury awards, limit exorbitant legal fees and reduce the filing of meritless cases.   

Doctors and hospitals are already straining to ensure patient care, with one of the top challenges being our untenable liability costs that far exceed all other states. That is the reason that New York already has a notorious reputation as being one the worst states in the country to deliver patient care. Many specialty care physicians, such as ob/gyns and neurosurgeons, can pay upwards of $200,000 each year.

Moreover, studies from Diederich Healthcare show that from 2019 to 2021, New York once again had the highest cumulative medical liability payouts of any state in the country, $1.4 billion, nearly twice as much as the second highest state and the third highest state. These costs also far exceed states like California and Texas — states that New York is in competition with for retaining and attracting specialty care physicians. 

With so many regions of the Empire State facing physician shortages, the outsized costs this legislation is expected to unleash will discourage many more physicians from wanting to stay or re-locate here.

Hochul should once again veto this bill. New York’s doctors stand ready to work with the legislature to help develop comprehensive legislation that thoughtfully balances the rights of grieving families with protecting access to our healthcare safety net. Let’s work together and take a thoughtful approach to complex and emotionally charged public policy issues.

Jerome Craig Cohen, MD, FACP, is president of the Medical Society of the State of New York, an organization of approximately 20,000 licensed physicians, medical residents and medical students in New York State.