Scorecard: Law and Lawsuits

Written by City & State on . Posted in Health Care, Trials/Hearings.

The Players

The Legislature
Proponents of tort reforms frequently take aim at Assembly Democrats as major opponents of change in state tort law, including Assembly Speaker Sheldon Silver, who is of counsel to the personal injury and medical malpractice firm Weitz & Luxenberg. But Republican state Sen. John DeFrancisco, also an attorney, is a noted opponent of tort reforms as well. Sen. James Seward, chairman of the Senate Insurance Committee, and former committee chairman Neil Breslin are advocates for changes in the state’s laws governing automobile accidents, which make up a vast number of the state’s tort cases.

The Health Industry
The Greater New York Hospital Association (GNYHA) and the Healthcare Association of New York State (HANYS) are some of the most vocal advocates for caps on noneconomic damages in medical malpractice awards, a measure they have not yet achieved, which they blame on the influence of trial lawyers over the state Assembly.

The Lawyers
The New York State Bar Association and the New York State Trial Lawyers Association have both registered opposition to proposed changes in the state’s tort laws, citing defendants’ rights to trial. Implicitly the trial lawyers’ opposition to measures such as caps on damages has an element of self-preservation, as limited payouts would also limit the fees lawyers could recover in settlements or trials. Opposing the lawyers’ groups on the other side of a number of tort-related issues is the Lawsuit Reform Alliance of New York.

The Issues

Construction Laws
Developers and some government officials argue that laws that hold building owners and contractors liable for gravity-related accidents on construction sites are expensive and go against the spirit of tort laws. New York is the last state in the country that still has such a strict Scaffold Law, critics say. The state’s trial lawyers argue the law protects New York’s high immigrant population working in construction since these laborers may not have safe workplace conditions or may lack sufficient safety training.

Auto Insurance
New York State is one of a relatively small number of states in the country with some form of no-fault auto insurance, which is supposed to curb auto-accident litigation by forcing insurers to pay regardless of who was at fault. But because New York also has a threshold over which a claimant can sue for certain damages based on types of injury, the state has seen a glut of claims in court, 36 percent of which have been determined to be fraudulent, at a cost of more than $229 million per year to the state. Several lawmakers, including Sen. James Seward, have tried to pass legislation that would reform the no-fault process.

Medical Malpractice
New York City has become famous (or infamous) for the large judgments juries award plaintiffs in some medical malpractice trials. Hospitals and doctors claim the multimillion-dollar payouts are a major cost driver for their medical-malpractice insurance premiums, and lead doctors to order expensive tests they don’t need in order to avoid liability in case of lawsuits. In past budget negotiations, Gov. Andrew Cuomo supported a $250,000 cap on noneconomic damages as part of his Medicaid-reform package, but the cap lacked the support it needed to pass. Those who oppose caps on damages suggest the medical community should do more to prevent adverse events. Other proposed reforms include changing the standards for a witness to testify as a medical expert in a trial and specialized courts where judges with medical knowledge can meet with plaintiffs and defendants to see if settlements can be reached early in the trial process.

Joint and Several Liability
New York tort law allows each defendant in a lawsuit to be found liable for the full amount of the damages, regardless of the degree of negligence. Proponents of reform to the law suggest this “joint and several liability” encourages a litigious climate in which parties are encouraged to sue the defendant with the most cash, instead of the entity most responsible.

Constitutional Changes

The amendment to legalize casinos in New York isn’t the only constitutional question before voters this year. Here are the six amendments on the ballot this year.

  1. Authorizing Casino Gambling: The amendment would allow up to seven casinos in New York. Proponents have touted the potential for job growth, school aid and lower property taxes, and they are benefiting by the inclusion of such potential rewards in the ballot language. Opponents warn of gambling addiction and crime and criticize casinos as a regressive way to raise revenue.
  2. Additional Civil Service Credit for Veterans with Disabilities: The amendment would grant additional civil service credits to veterans who are certified as disabled after they have already been appointed or promoted. Supporters say it would add more fairness for veterans and increase their employment opportunities.
  3. Exclusion of Indebtedness Contracted for Sewage Facilities: This amendment would allow municipalities to exclude the costs of sewage facility construction from their constitutional debt limits. The Constitution currently has this exclusion, but it expires next year. The amendment would extend it for 10 more years.
  4. Settling Disputed Title in the Forest Preserve: The amendment would resolve a land dispute in the Adirondacks, with the state giving up its claim in exchange for another piece of land to add to the Forest Preserve. Proponents say it would resolve a long-standing land dispute, while opponents say it should not be addressed through the amendment process but through the courts.
  5. Land Exchange in the Forest Preserve with NYCO Minerals: The amendment would let the state give a mining company Forest Preserve lands in exchange for another piece of land to add to the Forest Preserve. The company would also eventually return the land to the state. Proponents say it will preserve jobs, while opponents say it erodes the Constitution’s “Forever Wild” clause.
  6. Increase Age Limit for Some State Judges: The amendment would raise the age limit to 80 years old for Supreme Court and Court of Appeals judges in New York. Supporters say it will help keep enough judges on the bench, while opponents say it benefits high-level judges and that more retirements would encourage diversity.

(Source: New York Public Interest Research Group)

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