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With tort reform virtually a dead issue at the New York State Capitol, a Bronx assemblyman is proposing alternative legislation that would afford physicians a tax credit to offset high malpractice insurance rates. Assemblyman Jeff Klein said Monday that there has been no movement on tort reform in the lower house, that he does not expect any, and that he does not support pending bills that would dramatically alter the civil justice system. But the Democratic lawmaker agrees with a key argument of tort reform advocates — that medical malpractice rates are exorbitant and that doctors are avoiding high-risk specialities — and expressed hope that his tax credit legislation would be acceptable to the different factions in the ongoing civil justice debate. “I am hopeful this is something no one can disagree with,” said Klein, a partner in the law firm of Klein Calderoni & Santucci in the Bronx. “I think it is something the insurance companies can embrace, the trial lawyers can embrace and the doctors can embrace.” Klein released data from the Medical Liability Mutual Insurance Co., a physician-owned mutual insurance company sponsored by the state Medical Society, showing that on average obstetricians and gynecologists on Long Island are paying more than half their income for malpractice insurance. The survey shows that ob/gyns in Suffolk and Nassau counties pay an average of $109,934 annually for malpractice coverage, compared with $24,000 to $31,000 in upstate cities. New York City ob/gyns pay an average of $85,066, or about 38 percent of their annual income, according to the survey released by Klein. Doctors contend that mid- and late-career ob/gyns are retiring early to avoid high malpractice premiums, while medical students are choosing different specialties because of the legal exposure and expense. Klein said he is concerned about an impending shortage of obstetricians and gynecologists, as well as physicians in other high-risk specialties, such as orthopedic neurology. His bill would provide a tax credit to doctors paying more than 10 percent of their income toward malpractice premiums. The credit would be available only to physicians paying their own premiums, not those covered through their employer. And it would not be available to doctors who pay higher rates because of a prior record of negligence or misconduct, he said. Klein said his bill attempts to offer some relief to doctors when it is clear that tort reform is stalled in the Democratic Assembly. “I come from the school that everyone has their day in court,” he said, explaining his opposition to tort reform. “If someone is wronged by a doctor or corporation … they have a right to bring a lawsuit.” Klein Monday was joined by three obstetricians who support his bill but strongly oppose the assemblyman on the tort reform issue. “This is not in lieu of tort reform,” stressed Dr. Nicholas Kulbida, an obstetrician/gynecologist in Albany. “This will provide some immediate relief to a small number of physicians.” Dr. Richard Berkowitz, a professor of obstetrics and gynecology at Mount Sinai Hospital, said the tort system is geared more toward helping the unfortunate than in objectively determining whether medical negligence is responsible for someone’s misfortune. He said the problem is particularly acute when a child is involved and a family faces decades of medical and related expenses for an injury caused by fate rather than negligence. “I think tort reform is really what’s needed,” Berkowitz said. “I really do think this [Klein's bill] helps. Anything that allows people to continue to practice … is a benefit. This is a situation that has to be fixed.” Berkowitz said approximately three-fourths of ob/gyns are sued and that those who do become defendants are sued an average of three times in their careers. “This is a financial gold mine for lawyers,” Berkowitz said. “To me, the tragedy of it is the people who will ultimately pay for this system are American women. There is no question that people are getting out at one end and not coming in at the other.” Dr. Richard Waldman of Syracuse, N.Y., said 36 percent of the board-certified ob/gyns in New York are over age 60, while 45 percent of the graduating ob/gyn residents are leaving New York to practice in other states. Klein said he does not know what the measure would cost New York in tax dollars, but said it is unlikely to have any significant impact the state budget.

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