New York Gov. Andrew Cuomo unveiled his 2022 State Budget proposal last month, which included a restructuring of the state’s excess medical liability program for physicians.
Under Section 18 of the New York Medical Malpractice Reform Act, physicians who maintain primary insurance coverage limits of $1.3 million per claim and $3.9 million in annual aggregate with a New York State-admitted medical liability insurance company are eligible — at no cost — for an additional $1 million per claim and $3 million in annual aggregate coverage from the state’s excess medical liability insurance program. Access to the free program has been a competitive advantage that medical professional liability insurance companies operating in the state’s standard admitted market have had over risk retention groups and other alternative risk transfer products.
New York is facing a two-year, $15 billion budget deficit, and Gov. Cuomo’s proposed budget would save the state about $51 million annually by requiring physicians with access to the excess medical liability program to cover half of the coverage costs. The governor’s Fiscal Year 2022 Executive Budget Briefing Book cites a stabilized, strengthened medical malpractice insurance market since the excess fund’s creation and a 24% decrease in enrollment since 2015 as justifications for the restructuring.
“This [budget proposal] is both ill timed and shortsighted,” wrote Bonnie Litvack, MD, president of the Medical Society of the State of New York (MSSNY), in a January 21 communication with members posted on the society’s website. “Physician practices in the pandemic have been struggling to keep the doors open. If imposed, this will be the final straw for many practices and additional patients will lose access to care at a time when they and their communities need their physicians most.
“The excess program exists in the first place due to New York’s dysfunctional medical malpractice adjudication system (the worst in the country) and is akin to treating cancer with pain medications only. It is time to use tried and true remedies, like caps on pain and suffering [damages], expert witness reform and certificate of merit reform.”
In related news, Gov. Cuomo recently pledged to modernize the Department of Health’s Office of Professional Medical Conduct. During his 2021 State of the State speech, and included in his budget proposal, the governor promised to introduce legislative reforms intended to strengthen disciplinary actions for professional misconduct, improve enforcement and increase patient safety. One proposed reform is to add transparency by making misconduct investigations and information about non-disciplinary actions available to the public. New York law currently prohibits public confirmation of an investigation. The MSSNY has expressed its opposition to changing the law.
According to Litvack’s communication with members, the MSSNY is “perplexed by proposals to eliminate important due process protections for physicians against whom a complaint has been filed with the Office of Professional Medical Conduct. While we are committed to working to identify gaps in the NYS disciplinary, this budget proposal would give the Commissioner of Health the authority in their sole discretion to disclose to the public that a complaint has been filed against a particular physician, despite the fact that very few complaints ever actually result in a finding of professional misconduct.
“This information can remain on the internet forever, potentially ruining a physician’s professional reputation. The law already permits the commissioner to disclose information to the public when there is a public health threat. This provision would eliminate important due process protections.”
This article originally appeared in Medical Liability Monitor.