Hospitals can trim their malpractice costs as well. The New York Health and Hospitals Corp. has seen average malpractice payouts decline to $428,000 in 2010 from $567,000 in 2003 since it began participating in the program, though it’s not clear how much of this was due to the program and how much to other efforts to resolve medical liability issues.
Although some plaintiffs may receive slightly lower settlement awards, judge-directed negotiation is a good option for them as well, says Leslie Kelmachter, president of the New York State Trial Lawyers Association. “Many families would rather have 5 percent less now than [a larger amount] three years down the road,” she says. Prompt resolution allows them to get financial compensation and some degree of closure, so they can move on with their lives.
A sample case
Plaintiff’s lawyer Jeff Korek has participated in judge-directed negotiation, including a case five years ago in which a 19-year-old was hit by a drunk driver. The patient was brought to a hospital with a severe head injury. The young woman survived, but in a lawsuit she claimed she suffered permanent psychological problems because the hospital didn’t conduct appropriate diagnostic tests or perform surgery promptly.
The case was not a slam dunk, says Korek, because he knew the hospital could argue that it had saved
her life. But through judge-directed negotiation he believed he would be able to get at the complexities of the case with an experienced judge who understood the medical issues. The program “eliminates much of the posturing and negotiating which unfortunately is part of getting cases resolved,” he says. He described the settlement as “fair.”
The $3 million federal award to the New York program is one of seven announced last year by the Obama administration. The grant provides for two related activities. When something goes wrong, participating hospitals commit to a process that involves disclosing errors promptly to patients and offering them fair compensation. If that fails, hospitals refer cases to a judge-directed negotiation program.
“Our hope is that the [early disclosure] process will take care of most of these cases,” says Mello, who is evaluating the project for AHRQ. So if all goes well, cases will be resolved before they even make it to the judge for negotiation.
This column is produced through a collaboration between The Post and Kaiser Health News. KHN, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health-care-policy organization not affiliated with Kaiser Permanente. E-mail: questions@kaiserhealthnews.org
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