This is the inaugural column in what will be a periodic series primarily devoted to appellate decisions affecting medical malpractice litigation from the point of view of a trial judge.

However, in light of the increasing attention that recently has been focused on the rising costs of health care in the United States and the role played by medical malpractice litigation in those costs, and the fact that New York has a significant portion of this type of litigation, it seems appropriate to begin this series by taking a hard look at how the New York state courts are resolving these cases and whether we can do better. This is an important issue for New York because more medical malpractice claims are filed here than in any other state courts.1

Over the last decade, approximately 4,000 medical malpractice cases were filed here annually.2 In addition, the claims paid in New York are among the highest in the country. For the year 2011, New York had 1,379 paid medical malpractice claims, significantly exceeding the number in California (889), Pennsylvania (767), or Florida (758).3 The total amount paid in claims in New York in 2011 was $627 million, payments averaging $454,726 per claim, as compared to the national average payment of $334,559.

New York

In 2011, New York state courts disposed of 4,032 medical malpractice cases, 2,334 in New York City and the remainder in the rest of the state. Of the New York City cases that were not dismissed by the court or not prosecuted or defended by the parties (a total of 1,107 were disposed in that manner), 126 were tried to verdict, and 1,101—or 90 percent—were settled. That proportion is representative of the entire state, as approximately 48 percent of all medical malpractice cases are dismissed or do not proceed, 45 percent are settled, and 7 percent proceed to verdict.

A more detailed examination of what happens to cases that are resolved by settlement is revealing, since they make up the great majority of cases that proceed in the courts. Among all of the categories of civil cases, settlement of medical malpractice cases takes by far the longest to achieve—both in New York City and throughout the state. In 2011, the average age of a medical malpractice case at the time of settlement was 1,119 days statewide, 1,179 days for courts in New York City. In comparison, contract cases, which can be extremely complex, were settled at an average age of 500 days statewide and 589 days in New York City. The average age (in days) of other civil case types at settlement in the New York City courts and statewide is shown in the accompanying table.

Digging further into the data on the ages of cases resolved by settlement in 2011 in New York City shows that 82 cases were less than one year old; 187 between one and two years; 368 between two and three years; 309 between three and five years; and 155 were more than five years old. A total of 42 percent were three years old or older when settled. In contrast, only 17 percent of contract cases were three years old or older at the time of settlement, with 83 percent settled within three years. Data from the state’s most populous counties show that 61 percent of trial-ready medical malpractice cases have been pending more than 30 months, whereas only 42 percent of contract cases have been pending that long.

The obvious questions that arise are: Why are medical malpractice cases in the courts for longer periods of time than any other civil case type? And why is it that a complex commercial transaction in New York City is likely to settle years earlier than a medical malpractice claim? Should the courts be doing something different with medical malpractice cases?

If the 90 percent of cases not withdrawn or dismissed were in fact settled earlier in the case process, injured parties in malpractice litigation would avoid the years of uncertainty about whether they will receive compensation and how much, defendants would avoid the adverse effects of having a pending malpractice action against them, both sides would avoid substantial litigation costs and expenses,4 and the court system’s dockets would be cleared for those cases that should be tried.

Approaches to Resolution

Surely the complexity of medical malpractice litigation is one factor in the duration of these cases. They involve difficult legal and medical issues, require expert witnesses, and, quite often, include multiple defendants with different concerns and objectives in the litigation. Another is that the traditional management of medical malpractice cases in the New York courts has left the exploration of settlement with the presiding judge and the parties to the eve of trial, on the theory that settlement discussions cannot take place before discovery is complete and will not be taken seriously until the eve of trial.5

The New York judiciary is starting to modify this traditional approach to incorporate more opportunities for early settlement. Rather than acquiescing in the parties’ predisposition to begin settlement discussion only at the point of trial, several approaches are being developed that can lead to settlements much earlier in the life of the case. No one model is being applied statewide, and the objective is to use the most effective method consistent with the operational needs of the courts in the county.

Under one approach, which might be called the “single-judge model,” medical malpractice cases are assigned to judges who have undergone specialized training in the fundamentals of patient safety, medicine for judges (with emphasis on common malpractice fact patterns), mediation and negotiation techniques, and fashioning case-specific alternate remedies. These cases remain on the assigned judge’s docket from the parties’ first appearance in court, and the judge holds regular conferences—early in the case—for the purpose of considering and encouraging settlement.

The conferences must be attended by attorneys and other party representatives who have full knowledge of the case and the authority to settle. Of course, not every case will be appropriate for early settlement, and in practice, these judges review their dockets to identify those in which settlement seems more likely, such as those in which there is no dispute that a departure from the standard of care occurred, and the judge will directly lead negotiations about settlement to resolve the matter with little or minimal discovery taking place.6

This judge-directed approach, which began in Bronx County with a single judge, has been expanded to include specified judges in Bronx, Erie, Kings and New York counties. Participating hospitals, both public and private, have agreed to work with the presiding judges and the plaintiffs’ attorneys to resolve appropriate cases as early as practicable. The goal is to move the focus on settlement from the eve of trial, where the substantial costs of discovery already have been expended and positions have hardened, to the pretrial stage of the case. Although the data from this experiment is still being developed, all indications so far are that early pretrial settlements can be obtained. In the Bronx Supreme Court, for example, of the 970 medical malpractice cases resolved between 2006 and 2011 by a judge who adopted the judge-directed approach, 619—or 64 percent—were resolved at the pretrial stage, some within months of the initial conference with the judge.7

The experience of New York City Health and Hospitals Corporation, which has actively participated in efforts to obtain early settlements for several years, indicates that this approach can result in savings both from reduced litigation costs and from lower settlement amounts. The corporation estimates that this approach has led to a reduction in annual medical malpractice costs by as much as $50 million per year.

Another more recently developed approach to early settlements, which is being adopted in other locations, is to create more centralized settlement parts, with knowledgeable and seasoned judges available to facilitate settlement involving all medical malpractice cases in the county. For that approach, judges are being identified to handle these discussions based on their knowledge of medical and malpractice issues and record of past success in helping parties settle their cases. If no settlement is reached in the case, it is returned to the docket of the initially assigned judge.

A third model involves an up-front review, before the case is even assigned to a judge’s docket, to identify those cases that appear likely to settle. The judge in this conference part works with the attorneys to triage those cases that are appropriate for early settlement discussions, and continues to oversee those cases throughout settlement. If the matter is not resolved, the case proceeds to another judge’s docket for discovery. Other models may be developed as we learn from these new efforts.

Of course, nothing in this settlement initiative is meant to discourage cases from proceeding to trial. In fact, by accelerating settlements to an earlier stage in the appropriate cases, judicial dockets should be less congested and judges more readily available to start trials sooner than they can do now.

Conclusion

Without a new approach to settlement, a medical malpractice case filed in New York today could take up to five years or more to resolve, either by settlement or trial, with related costs of extensive discovery and later, higher settlement amounts. That is the status quo. The preliminary data indicates the possibility of doing better. New York is off to a promising start, but it is only the beginning. The goal of the program is to develop flexible approaches that will work in the context of each county’s operational practices and needs, so that we achieve outcomes in medical malpractice cases earlier and more efficiently than we do now. In short, to change the status quo.

Ann Pfau is the Statewide Coordinating Judge of the New York Medical Malpractice Program and former chief administrative judge of the New York State Judiciary.

Endnotes:

1. National Center for State Courts, Court Statistics Project, Medical Malpractice Caseloads, http://www.courtstatistics.org/Civil/CivilMedicalMal.aspx.

2. New York State Office of Court Administration, Office of Court Research, is the source of all data on New York cases cited in this article, unless otherwise indicated.

3. From The Kaiser Family Foundation, statehealthfacts.org (Foundation’s analysis of data from the National Practitioner Data Bank (NPDB), Public Use Data File (NPDB1110.POR), U.S. Department of Health and Human Services, Health Resources and Services Administration, Bureau of Health Professions, Division of Practitioner Data Banks; available at: http://www.npdb-hipdb.hrsa.gov; accessed by Foundation March 27, 2012).

4. Data on cases resolved in 2009 show that the average defense cost through trial ranged from $140,000 to $170,000, while the average defense costs for settled cases was $69,244. Denise Johnson, “Can Damage Caps Limit Medical Malpractice Exposure,” Claims Journal (Dec. 1, 2011), http://www.claimsjournal.com/news/national/2011/12/01/195980.htm. Expert witnesses’ fees, which both sides must bear, can exceed $10,000 per day.

5. In 2011, a total of 209 medical malpractice trials were commenced in New York City, with 83 settled after the trial had begun and 126 tried to verdict. Of the cases tried to verdict, 25 percent resulted in plaintiff verdicts, slightly above the national average of 23 percent plaintiffs’ verdicts for medical malpractice cases. See Cynthia G. Lee and Robert C. LaFountain, “Medical Malpractice Litigation in State Courts,” National Center for State Courts, Court Statistics Project, Caseload Highlights, Vol. 18, No. 1, at 4 (April 2011), available at http://www.courtstatistics.org/Civil/~/media/Microsites/Files/CSP/Highlights/18_1_Medical_Malpractice_In_State_Courts.ashx.

6. This judge-directed approach to early settlement is supported by a “New York State Medical Liability Reform and Patient Safety Demonstration Project” grant from the federal Agency for Healthcare Research and Quality, which includes funding for judicial training. The grant involves a collaboration with five academic medical centers located in New York City, and its overall objectives include reducing preventable injuries, improving doctor-patient communication, and ensuring fair and quick compensation for medical injuries while reducing the incidence of frivolous lawsuits and cost of insurance premiums.

7. Office of the Administrative Judge, Bronx County Supreme Court, Civil Term.