New York’s Proposal 131

Shame on Governor Cuomo for proposing to “balance” the budget on the backs of the weakest and most vulnerable members of our society–catastrophically brain injured children who are the victims of medical negligence.

I am writing in dismay over “Proposal 131” which was literally snuck into the Governor’s Budget proposal by a group of special interests without any debate or representation of the children who will be devastated by this plan.

There was no analysis or scrutiny of the claimed “budget savings” which are questionable at best. But even if there were some savings (which I doubt would withstand any objective analysis) such “savings” come entirely at the expense of the people who can least afford it–those children seriously injured through no fault of their own.

Why is it that whatever the claimed problem, the “solution” is always to take away victims rights and cap the non-economic damages of those persons with meritorious malpractice claims (the legislation doesn’t affect non- meritorious claims) at $250,000? It’s never $1 million, never $300,000. It’s always the same timeworn one size fits all $250,000, around since the 1970’s and trotted out at any and every opportunity. A measure that could never pass on its own merit, is now trotted out as a budget “solution.”

Even worse, as part of his proposal the Governor also seeks to impose a workers’ compensation type system on brain injured children–where the State will decide what care these children will get–or more important, not get! As if Workers’ Compensation works so well in New York. Talk about “death panels, and rationing of health care that conservatives are so fond of criticizing. And just where is the Tea Party when it comes to this huge expansion of government control over health care that they so vigorously oppose when they refer to “ObamaCare”? Just how creating a new bureaucracy to administer and pay these claims is supposed to save the State money is left unsaid. I guess that part we just have to take on faith. Moreover, the proposal’s “savings” ignores the fact that millions of dollars each year is paid back to the State from tort recoveries to satisfy Medicaid liens. These sums will also disappear, along with the illusory budget “savings.”

Studies have confirmed that there are approximately 100,000 deaths every year from malpractice in hospitals alone. And that number doesn’t include serious injuries or malpractice outside hospitals. Perhaps the Governor can explain how limiting or preventing recoveries in valid cases can make these children or other malpractice victims safer. In the meantime the goal should be to reduce “wrongs,” not limit “rights.”

These are real people, with real needs, who are the victims of real malpractice: Here are some of the kinds of cases that I am talking about:

  • An unsupervised first year resident is allowed to read an obstetric ultrasound upside down and backward resulting in a quadriplegic child who needs a lifetime of care.
  • An obstetrician orders a caesarian section because he is concerned that the baby isn’t getting enough oxygen-then leaves the hospital for three hours to do something else. Result severely brain injured baby requiring lifetime care.
  • A child discharged from the Emergency Room in violation of the Hospital’s own rules without ever seeing a physician, and without a blood test recommended by both the American Academy of Pediatrics and the American College of Emergency Physicians. He is now quadriplegic and blind.
  • A mother in labor is given an “off label” drug, in violation of the manufacturer’s prohibitions and the Hospital’s own protocol. Then after the child is born with a serious brain injury the hemorrhaging mother is left to bleed to death in the recovery room.

Does anyone seriously think that the persons who caused these harms should be protected from liability.These are all children who need extensive care, but-instead of such care being paid for by those who caused the harm to them-will now be forced into an untested state system and have to beg for the care that they desperately need. We will be creating another set of Willowbrook institutions instead of allowing these children to be cared for by their families with the help and services they need. Entirely ignoring the lack of fairness, anyone who thinks that there is any possibility at all that these proposals will ever “save” any money to the State is seriously misguided.

Yes, I am an attorney. And yes I represent these victims of medical negligence and I’m paid to do so. I’m proud of what I do to help these children recover the resources they need to maximize the quality of their lives from the wrongdoers who caused their injuries. If Proposal 131 is passed as part of the Budget, I very much doubt that when these innocent children start dying because they are deprived the care they need, that Governor Cuomo and any member of the legislature who voted for it will be very proud of what they did. By then it will be too late. When that time comes, as it surely will, don’t say that what you did wasn’t predictable.

Michael W. Kessler
Attorney at Law
Rosenblum and Partners, LLP.
110 Great Oaks Blvd.
Albany, New York 12203
Board Certified in Medical Malpractice Law by
American Board of Professional Liability Attorneys