Memorandum of Opposition: A. 3339 (Weinstein)
Advanced to Third Reading, cal 405
This legislation would amend the timeframe an individual has to initiate a medical malpractice action by changing the law from a “statute of limitations” to a “date of discovery” rule. This bill will dramatically increase the cost of physician insurance during a time when the financial burden of medical liability coverage has already reached crisis proportions. Instead of penalizing physicians, the State should work towards comprehensive liability reform that would protect patients and their healthcare providers. As such, the American Congress of Obstetricians and Gynecologists (ACOG), District II opposes this legislation.
“Statute of limitations” refers to the legally imposed limit on the amount of time an individual has to initiate a lawsuit. Current New York statute for medical, dental, or pediatric malpractice is two years and six months from the date of the alleged negligent act. This legislation amends Section 214-a of the Civil Practice Law and Rules to create a “date of discovery” rule, meaning the statute of limitations would now begin from the date an injured patient discovers, or should have discovered, that the alleged malpractice occurred. The individual would be allowed to file a lawsuit up to ten years after the date of the alleged malpractice.
As the membership organization representing over 4,000 ob-gyns in the state, ACOG is strongly opposed to this legislation, as it would increase lawsuits and insurance premium costs for physicians, and does nothing to address the liability crisis the state is currently facing. The cost of medical liability premiums for the 2016-2017 year for an ob-gyn in Bronx and Richmond counties is $186,630. According to a Milliman actuarial study, this legislation would increase premiums by 15.6% due to increased uncertainty about exposure to liability claims.
Obstetrics and gynecology is considered a high-risk specialty and is severely affected by rising insurance premiums.i New York ob-gyns already face among the highest malpractice premium rates across the country.ii The fear of lawsuits is a very real concern for ob-gyns practicing in New York State. 83.9% of New York
respondents to ACOG’s National survey on professional liability indicated that they had a least one claim filed against them during their careers.iii Of these, 54.9% had four or more claims filed against them.iv
Combined with the already unsustainable medical liability environment in New York, this bill could potentially drive ob-gyns out of the state due to increasing costs of liability premiums. In fact, from 2009-2012, 66% of New York state ob-gyns made changes to their practice as a result of the affordability and/or availability of professional liability insurance.v 27.4% decreased their number of high-risk patients, and 10.2% stopped practicing obstetrics altogether. vi This is an unfortunate reality, especially in areas where access to obstetric services is already limited.
ACOG urges the Legislature to reject this bill and to instead consider legislation to address the broader liability concerns at play in the state.
i Mello M, Studdert D, DesRoches C. Peugh J, Zapert K, Brennan T and Sage W (2005). “Effects of a malpractice crisis on specialist supply and patient access to care,” Annals of Surgery 242(5).
ii Excellus Blue Cross Blue Shield. “New York state medical malpractice coverage premiums.” (Winter 2016). http://bit.ly/1TKbcKz
iii 2012 ACOG Survey on Professional Liability – American College of Obstetricians and Gynecologists
v 2012 ACOG WORKFORCE FACT SHEET: District II (New York) – American College of Obstetricians and Gynecologists.