Lavern’s Law, a bill that would have helped grievously injured victims of medical malpractice have their day in court, was terminated this summer when the Republican Senate majority leader, John J. Flanagan, would not allow the bill to be voted on.
The bill is named after Lavern Wilkinson, a Brooklyn woman whose curable form of lung cancer went untreated when doctors at Kings County Hospital failed to alert her to a suspicious mass noted on an x-ray taken three years earlier. Ms. Wilkinson died, and her daughter was barred from bringing a lawsuit against the negligent hospital because in New York, a victim has only two and a half years from the time of the medical mistake in which to bring an action, not from the time the error was discovered or should have been discovered. The latter standard is the law in 44 states, and Lavern’s Law would have adopted the provision in New York.
The issue of medical malpractice has been in the limelight for years now. In 1999, the Institute of Medicine at the National Academy of Sciences published a study, “To Err is Human,” which concluded that at least 44,000 patients were killed (and many more injured) in hospitals each year because of medical errors. By 2011, a study in the journal Health Affairs estimated that the number of avoidable deaths was probably 10 times higher. Hundreds of thousands more patients are seriously injured through negligence. Doctors and hospitals are doing a poor job of policing themselves, yet they have been successful at keeping anyone else from doing it.
Despite the frequency of avoidable errors, very few wind up as medical malpractice lawsuits. A 2013 study concluded that about 1 percent of medical errors resulted in a claim. Only a tiny percentage of malpractice cases result in doctors’ hospital privileges being curtailed. Between 2011 and 2013, there were approximately 7,400 complaints against doctors filed each year with the New York State Office of Professional Medical Conduct. Of the complaints filed, less than 4 percent resulted in serious sanctions: the loss, suspension, or restriction of the physician’s license.
And even if a victim wins a medical malpractice lawsuit, awards are generally modest. Thirty-three states restrict the amount of compensation for the pain and suffering victims have endured. According to the Department of Justice, the median award by juries is $400,000; in bench trials, where the judge also serves as the jury, the median award is $631,000. But when juries do award large pain-and-suffering amounts, it is because that is the only way our system allows people who have been grievously harmed to recoup some measure of what they have lost.
Doctors and hospitals must do a better job of policing themselves. Six percent of all doctors were estimated to be responsible for 58 percent of all malpractice payments between 1991 and 2005. State licensing agencies must do a much better job of keeping those worst of the worst out of hospitals. The threshold for state medical licensing agencies to initiate reviews should also be reduced.
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