Bloomberg: City’s Tort Victims Should Bear Own Costs

In an interview with me yesterday just after a speech before the New York State Bar Association on the issue of “tort reform,” Mayor Mike Bloomberg said that victims of New York City’s negligence should bear their own costs. “It’s just too much for us to compensate these people, we think the better policy is for those who were injured by our negligence to take care of it themselves.”

The mayor, in wide-ranging comments made in front of the lawyers group that he continued with me afterward, said, “Look, let’s be blunt here. Who is in a better position to pay the costs of an injury if a city bus injures people? Our strapped city budget, or the victims? Yes, we know that some of them can’t work, can’t take care of their kids, or even go shopping for food due to their injuries, but we have to be realistic. This is tort reform, and we need more of it here.”

In his remarks, the mayor noted the political realities of the situation: “This city has a lot of businesses in it, and if they don’t make decent profits, it won’t be a good situation. And I know all about profits, having built a pretty handsome business before the voters asked me to take this job.” “Let’s face it,” Bloomberg continued in my interview with him, “personal responsibility is so yesterday.”

OK, maybe my quotes aren’t quite exact, and I didn’t meet with him in the traditional sense so much as I channelled  his inner thoughts. But they are not far off from reality. Bloomberg actually did stand before the lawyer’s group yesterday. And he really did argue for various forms of immunity for the city for its negligence.

One topic was medical malpractice and the claim that doctors are moving away from upstate due to a fear of litigation. Well, they are moving away from upstate it is true, but upstate is economically distressed. It’s fairly well known that doctors and other professionals tend to move to nicer areas if they can.

No real surprise there. Good food, theatre, a vibrant city life, and many other benefits for which people have been moving to cities. Factories close and workers move. Those workers are also called patients.

But Bloomberg tries to claim that this migration is actually due to medical malpractice issues. Really. He does. His exact words (Bloomberg-TortReformSpeech):

This fear of litigation drives up the cost of health care, and it can lead to a shortage of doctors in certain specialty fields – as we see Upstate. In Western New York, a recent survey found that 91 percent of emergency departments had to transfer patients to another hospital in 2009 because of lack of coverage in a necessary specialty.

Anyone here think I’m going to let him get away with that?

Let’s turn to an actual study, that was captured in this 2007 article in the New York Times (Few Young Doctors Step in as Upstate Population Ages) a different reason is presented, and it has everything to do with (surprise!) doctors moving to wealthy areas because they want to make more money and have a nice lifestyle:

In New York, the study found 6 percent growth in the number of doctors practicing medicine in the state from 2001 to 2005, for a total of about 77,000 doctors. But the way they are spread throughout the state is wildly uneven.

While newly licensed doctors flock to New York City, Long Island and Westchester County, where there is already a glut, far fewer choose to practice in the vast upstate region. For instance, during the years the study was conducted, Essex County in the Adirondacks lost 22 percent of its doctors, while there was a 19 percent increase in Nassau County, on Long Island.

And as doctors upstate retire — one-third of the physicians in Binghamton are 55 or older — recruiting replacements is becoming more difficult. “I worry that new physicians may not see certain areas in the state as viable or attractive,” Ms. Moore said.

There is little question why, since statistics show a steady exodus of jobs and a decline in prosperity in upstate New York. In the last three decades, the population drain has contributed to New York’s loss of Congressional seats, to 29 today from 39, and state figures show that the number of 20- to 34-year-olds in the region decreased by 22 percent in the 1990s.

Nice try Mr. Mayor. Perhaps you even found some folks who believed the nonsense you spouted.

He also tried out the concept of neutral medical malpractice panels to pre-screen cases. Thanks, mayor, but we already tried that in the ’80s and it was a miserable failure that led to years-long delays in cases getting resolved. (See: Why Medical Malpractice Panels Fail)

Doctors, it seems, didn’t want to take time out of their day to sit. And there were no witnesses, just records. It was therefore impossible to resolve the “patient said” / “doctor said” disputes as to facts.

He tried out the old “unfair verdicts” routine:

How can we make our tort outcomes more predictable, more equitable, and fairer? Litigation was designed to promote fairness, but today, civil litigation is more like the lottery: a few people get a windfall of cash, but most lose out.

Well, that is why we have judges that can toss out arbitrary and unfair verdicts. I’m way ahead of you on that “windfall” nonsense. See How New York Caps Personal Injury Damages.

And he trotted out the old “run it like a no-fault system” routine:

Certain classes of claims, such as those arising from cerebral palsy or birth defects, are such painful cases. And they often lead to arbitrary and unfair verdicts. Why not instead experiment with alternatives like a no-fault system where payments depend on injury, not fault? This would compensate families evenly and fairly without the expense and delays of litigation, and would remove the powerful disincentive for new doctors to become OB/GYNs.

Who said the no fault system was fair? He’s clearly never heard of sham no-fault exams by allegedly “independent” doctors that last only a few minutes and are designed with one thing only in mind from the insurance company that is paying the benefits; Find a way to cut those benefits off.

He tried out this one also: “The size of judgments, and the fact that they can be recovered even when the plaintiff is at fault, has helped drive a huge increase in tort payments.” He forgot to mention, of course, that if a plaintiff is negligent then the verdict is reduced by the same percentage amount in accordance with CPLR 1411.

But I think this was the real crux of his argument…that because the city pays a lot of money it must therefore be unfair:

Of course, the City should pay in cases where it is primarily at fault, but judgments in those cases would not amount to anywhere near the half billion dollars a year we currently pay.

This isn’t the first time I’ve heard this.  In July 2009 I systematically pulled apart a piece in Forbes that came from a fellow at the Manhattan Institute that hit this point.  If the city doesn’t compensate the victims of its negligence, of course, then that means someone else is bearing the costs. And I refer not only to the medical costs, or the economic costs from lost wages if the person works, but to the costs of the suffering involved.

By the way, Bloomberg touts Texas as a great example of tort reform, where victims get double-screwed (Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work”?)). But  when did it become  good public policy to take those that have been injured by the negligence of others and tell them they must fend for themselves?  Is that anyone’s idea of personal responsibility?  (It’s worth noting that  doctor disciplinary proceedings in Texas have more than tripled in the last ten years, a subject I’ve written about before. Is that because bad doctors see Texas as a safe haven?)

C’mon mayor, this is like shooting fish in a barrel. Don’t you have any real arguments to make?

(The WSJ also has an article on the speech, in which I am quoted from an older blog posting: Mayor: Tort Reform Would Cut Costs)

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15 Responses Leave a comment

  • thenambypamby 2011.1.27 at 10:49 | Quote

    Does NY have a tort immunity act like Illinois? [i.e. in most cases simple negligence is not enough to advance a claim against a municipality?]

  • Eric Turkewitz 2011.1.27 at 11:02 | Quote

    Does NY have a tort immunity act like Illinois? [i.e. in most cases simple negligence is not enough to advance a claim against a municipality?]

    Immunity? No. They tried it many years ago with sidewalk cases by claiming that, unless the city was given prior written notice of the particular defect, then the city couldn’t be held liable. This was defeated, in part, by having the city’s sidewalks mapped in their entirety and serving the city with a copy.

    As you might guess, the city wasn’t pleased at being given notice of the dismal state of the infrastructure. Subsequent legislation shifted much of the burden to abutting landowners.

  • thenambypamby 2011.1.27 at 11:16 | Quote

    @Eric Turkewitz – There has to be a happy balance that can be reached between the Plaintiffs Bar and the City/State. At least, I would think that we could. Maybe? Possibly?

    Ok, I’ll shut up now.

  • Eric Turkewitz 2011.1.27 at 11:27 | Quote

    There has to be a happy balance that can be reached between the Plaintiffs Bar and the City/State. At least, I would think that we could. Maybe? Possibly?

    Agreed. And that happy balance is that the city should act with reasonable care.

  • Avenger 2011.1.27 at 18:15 | Quote

    I think a reasonable compromise on the issue of sovereign immunity would be to have the City/State held responsible for its share of economic damages (I am not sure if New York adheres still to odious doctrine of joint & several liability) but cap the non-economic damages

  • lawyer 2011.1.27 at 19:41 | Quote

    Bloomberg’s argument might make sense if the city actually paid out the judgments it’s supposed to. However, my understanding from talking to both plaintiffs’ lawyers and friends in the Law Department is that it is almost impossible for a winning plaintiff to actually collect a dime from the city. Not sure how the city factors litigation losses into its books, but if my understanding is correct then John Liu needs to look into this.

  • Brooklyn Lawyer 2011.1.28 at 01:37 | Quote

    You’d have to admit, though – Bloomberg is between a rock and a hard place like so many mayors across the nation that are trying to keep taxpayers happy enough to vote for them. Does that provide a solution to the problem? Not really, but it raises a question – what would you do in his shoes?

  • Eric Turkewitz 2011.1.28 at 01:59 | Quote

    …but cap the non-economic damages

    So you are in agreement with Bloomberg that victims should be double-screwed if the City injures them due to its negligence. First the victims get injured, then they are denied fair compensation to account for the injury. In other words, exactly as my headline says, that they should bear that cost themselves. And the City gets the benefit.

  • Avenger 2011.1.28 at 02:13 | Quote

    No Eric, you’ve misstated my position entirely – I said that the City should pay their fair share of economic damages, whatever that fair share happens to be. The City should NOT be required to pay whatever share is attributable to others. If the City is 50% at fault, another defendant 25% at fault and the plaintiff 25% , then the plaintiff should collect 50% from the City and 25% from the other defendant. If the other defendant is insolvent – well no one said life is fair and collecting that from the City would be wrong, and as we all know “two wrongs don’t make a right” (although they can certainly bump up those contingency fees)

  • Wiser 2011.1.28 at 08:42 | Quote

    Bloomberg to injury victims: “Drop Dead. And if you do, we still won’t pay your family.”

  • Pierre 2011.1.28 at 17:48 | Quote

    Treating a governmental entity just like any other defendant has a number of logical and political drawbacks, which I’m sure doesn’t bother the plaintiff’s bar. So what if the taxpayers pay for the plaintiff’s medical bills once through welfare and then again through a judgment? PI lawyers don’t get a third that way, so it must be unjust to limit liability!! Who cares that taxpayers already foot the bill for emergency care, either because of legislative mandates or increased insurance premiums? Screw ‘em, show me the money!! So what if we already pay for counseling, education, vocational rehab, and lost wages?? Plaintiff’s lawyers don’t see a dime of that money, so we should have to pay it twice!

    Either advocate for elimination of the collateral source rule, or reveal yourself as a money-grubbing parasite who only has self-interest at heart.

  • Eric Turkewitz 2011.1.28 at 18:00 | Quote

    So what if the taxpayers pay for the plaintiff’s medical bills once through welfare and then again through a judgment?

    I take it you don’t practice law in New York. One cannot collect a judgment for medical expenses that were paid by collateral sources. The exception is for certain statutory liens such as Medicare or Worker’s Comp that have to be paid back. In other words, there is no double recovery in New York.

    Now aren’t you embarrassed by your uninformed rant?

  • Matt 2011.2.4 at 06:21 | Quote

    Pierre 2011:

    What in God’s name are you yacking about, you uninformed dolt. There is no double recovery in New York.

    The only bottom dwelling parasite I came across in this commentry is you. You spout utter nonsense and think you are making some kind of a point. You illustrate just how bad our public education system is and why the Chinese have the upper hand.

    You are good for comic relief though. After reading how incorrect your assessment was I laughed a little.

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