MDNews - Central New York

++++++++++++++++++++++++++++++++++++++++++++ ONONDAGA COUNTY MEDICAL SOCIETY ++++++++++++++++++++++++++++++++++++++++++++ +++ +++ + + Another Painful LEGAL BLOW for Physicians By Gerald N. Hoffman T HE COURT OF APPEALS, New York State's highest court, recently delivered another cruel legal blow to the state's physicians. The court ruled in Dombrowski v. Bulson (19 NY3d 347) that a lawyer who is held liable in malpractice does not owe the plaintiff for pain and suffering. How about that double standard? A Central New York lawyer who is also a physician shared with me his comments on the case. "As a lawyer, if I screw up, and my client negligently goes to jail, I'm not liable for the innocent client's pain and suffering," he said. "But as a doctor, if my laceration repair in the ER results in a bad scar (and attendant emotional distress), I am liable for pain and suffering." With tongue in cheek, he added, "It's good to be a lawyer." Here is yet another clear-cut example of the uneven legal play- ing field for physicians. Of course, the rules for the legal playing field are drawn up by lawyers, who are very good at protecting lawyers. This decision does little to improve the reputation of our legal system. No wonder physicians are terrified when they are sued for medical malpractice. Equal rights in that arena do not exist for physicians, as proven in the above case. I am sure that the great legal minds on the Court of Appeals are very comfortable in their decision on Dombrowski v. Bulson. Excuse me, but I wonder if those jurists would answer in a public forum how they can justify shielding lawyers from paying damages for pain and suffering when they are at fault, while physicians are not given the same protection. Many years ago, a prosecutor surprised me when she told me that she was opposed to the death penalty because she had seen too many bad decisions in such cases. Unfortunately, the scales of justice are not always balanced, and too often verdicts rendered in medical liability cases and so many other cases are simply bad decisions. I must admit that my applying for the job I have held at the Onondaga County Medical Society for 32 years was greatly influenced by my work in the New York State Legislature. I was executive assistant to state Sen. Tarky Lombardi Jr. when he was deeply involved in the medical malpractice insurance crisis that swept across the country in 1975. Following that crisis, Sen. Lombardi and I co-authored Medical Malpractice Insurance: A Legislator's View, a book that was published in 1978 by Syracuse University Press. While doing research for the book in New York City, one night I went out to dinner with a childhood friend who knew of my legislative work. He introduced me to the owner of the small neighborhood restaurant at which we were eating, who I later learned was one of the most successful plaintiff attorneys in the city. In his introduction, my friend said that I was on Sen. Lombardi's staff. The restaurant owner quickly replied, "Tarky Lombardi, friend of the doctors." Many present-day physicians might not know that, for many years, Sen. Lombardi was the lead sponsor of legislation to establish a $250,000 cap on pain and suffering awards in medical malpractice cases. The State Senate passed this legislation on several occasions, but the bill never came to the floor of the State Assembly, whose top leaders are usually trial lawyers. For many years, Lombardi has served on the board of directors for Medical Liability Mutual Insurance Company. After he retired from the State Senate in 1992, he received the Nathan Davis Award from the American Medical Association for his outstanding service as chair of the New York State Senate's Health Committee and leadership in the health field at the state level. While my wife and I were going over the final page proofs for the book, I commented that "doctors are getting a raw deal" on the medical malpractice issue. Forty-four years later, they are still getting a raw deal, as evidenced by the recent decision of the Court of Appeals. Please note that I have refrained from using any four-letter words in this article, but I am sure that New York State physicians will use plenty of them when they talk about the decision in physicians' lounges and elsewhere. Gerald N. (Jerry) Hoffman is Executive Vice President of the Onondaga County Medical Society and is co-author of two books, Medical Malpractice Insurance, A Legislator's View and The History of Local Medical Care, 1806-2006. s MDNEWS.COM s MD NEWS Central New York | 5

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