ISSUE SPOTLIGHT / LAW AND LAWSUITS
THE ROUNDTABLE Richard Gottfried
JAMES SEWARD
JOHN BONACIC
HELENE WEINSTEIN
Chair, New York State Assembly Health Committee
Chair, New York State Senate Insurance Committee
Chair, New York State Senate Judiciary Committee
Chair, New York State Assembly Judiciary Committee
Q: One bill that died in committee this past session is “Lavern’s Law,” which would have changed New York medical malpractice laws to start the statute of limitations from the point at which any alleged malpractice could reasonably have been known. What is your position on the bill? RG: I support it. Remember Lilly Ledbetter. For years her employer illegally paid her less than it paid men doing the same job, but she didn’t know that. When she learned what was going on, she sued. The Supreme Court ruled that the statute of limitations had run out. People were so outraged that Congress quickly changed the law. That’s what Assemblywoman Helene Weinstein’s bill would do for malpractice claims. A malpractice injury can begin to produce noticeable symptoms after New York’s very short statute of limitations has run out. It’s basic fairness that the clock shouldn’t start till the patient knew or reasonably could have known about the injury.
Q: Critics of the state’s Scaffold Law have been mounting a campaign to reform it, arguing that it raises costs too much. Supporters say it is necessary to ensure worker safety. Should the law be changed? JS: The Scaffold Law is outdated and overdue for modification. New York is the only state that holds contractors and building owners to an absolute standard of liability when a worker is injured on the job. As a result of this open-ended liability, we have seen skyrocketing general liability rates and reductions in available coverage. I am a co-sponsor of legislation (S.111) that would protect injured workers while reducing the cost of doing business in New York State. By applying a comparative negligence standard of liability for claims under the Scaffold Law—as opposed to the current absolute standard—workers whose negligence directly contributed to their injuries are held liable for their actions. As a result, we should see a reduction in general liability rates for contractors and subcontractors.
Q: In 2011 state Sen. James Alesi sued the owners of a property where he had slipped and hurt his leg—even though he was trespassing on the property. Alesi dropped the lawsuit, and lost his bid for re-election. Now “tort reform” proponents are taking aim at the state law, which they say is on the books in only one other state. Should the law be changed? RG: Whether the injured person was not allowed to be on the property where the injury happened is a factor to consider, but it should not be an absolute protection for someone whose misconduct caused the injury.
Q: Some have also called for a cap on noneconomic losses, such as pain and suffering, a cap that is in place in states like California and Texas. Is that a good idea? JS: I would be open to considering a reasonable cap on noneconomic losses. New York’s generous tort laws drive up insurance premiums. While it is important that injured plaintiffs are able to secure reasonable compensation for their injuries, lawsuits should not result in a windfall—a windfall that everyone living or doing business in New York pays for through higher insurance and other costs.
Q: Are there any other bills related to lawsuit issues that you see as a priority in 2014, bills that either should or should not pass? RG: I want to see physicians, trial lawyers and consumer representatives sit down and seriously negotiate to find changes that would work and that are acceptable to all of them. This might include some changes in tort law procedure and substantive rules, and stronger protections for patient safety. It should be possible for healthcare providers to analyze a case, discuss it with colleagues and learn how to do better, without fearing that what is said will be used in court.
20 NOVEMBER 4, 2013 | cityandstateny.com
Q: Are there any other bills related to lawsuit issues that you see as a priority in 2014? JS: Yes. I continue to be a strong advocate for real, comprehensive reform in our nofault system. No-fault fraud is rampant in New York, particularly in the New York City area, and is a primary reason that New Yorkers pay the fourth-highest auto insurance premiums in the country. The Senate, on multiple occasions, has passed legislation to crack down on runners and those who stage accidents, along with a measure to allow insurers to retroactively cancel policies taken out by those who commit fraud. I have also introduced a series of legislation that would reform the no-fault system in a more comprehensive manner.
Q: You are a strong proponent of the constitutional amendment to legalize casino gambling in the state. What is your view on the amendment to raise the age limit of certain state judges? Are there other ways to address the backlog of cases and the limited number of judges in the state? JB: I have mixed feelings. I introduced the bill in order for the people to decide. I would prefer a broader bill that increased the retirement age for all judges, but this is the only bill the Assembly would pass. We can expect the governor’s office to make many recommendations for appointments that will fill these judicial vacancies, particularly in the Appellate Division, in the next session. Q: Are there any other constitutional amendments you have an opinion on? JB: As to the other five, of course, I am strongly for casino gaming resorts, which will produce jobs, provide increased education funding and reduce property taxes. I will be voting for the remaining four amendments. Q: Some “tort reform” advocates are calling for a change in the state’s standard of evidence, arguing that the Daubert standard should replace the Frye standard. Do you agree? JB: I am in support of maintaining the Frye standard of evidence for New York. While the focus of the inquiry of experts may differ between the Daubert and Frye standards, the tests are not substantially different, and there is little evidence that the results are much different in cases. Q: Are there any other bills related to the judiciary that you see as a priority in 2014, bills that either should or should not pass? JB: Spousal maintenance standards need to be addressed. Last month I held a public hearing of the Senate Judiciary Committee regarding temporary and postdivorce maintenance calculations. Under the current laws, which were passed with the No-Fault Divorce law, there is too much uncertainty in the amount and duration of maintenance awards. The judges are advising us the current standards cause more litigation and therefore are more harmful than helpful. We need to take action to adjust the current laws to create a more reliable formula, reduce present caseloads and bring a better sense of justice to litigants.
Q: What is your view on the constitutional amendment to raise the age limit of certain state judges? Are there other ways to address the backlog of cases and limited number of judges? HW: I support the constitutional amendment. Additional judicial resources are warranted, and the amendment would accomplish this without imperiling significant priority of enhancing judicial diversity, given that no elections for Supreme Court positions would be delayed or imperiled. Many courts have too few judges to handle their caseloads, an acute problem especially in family courts throughout the state. However, unless and until additional judicial positions can be created, this constitutional amendment is the best present option for enhancing judicial resources. Additionally, the mandate of judges having to retire from the Court of Appeals at age 70 is an outdated notion and results in us losing some of our most knowledgeable jurists. We were made deeply aware of this result recently when two outstanding jurists, Chief Judge Kaye, as well as Judge Carmen Ciparick, were forced to retire at age 70. I believe that allowing Court of Appeals judges to serve their entire terms beyond age 70 would greatly enhance the court and the administration of justice. Q: Are there any other bills related to the judiciary you see as a priority in 2014? HW: There are a number of priorities, including adequate funding for civil legal services and insuring due process rights for those facing mortgage foreclosure. There were also a number of bills that passed the Assembly this year but unfortunately were not taken up for consideration in the Senate. Among the most pressing are: 1) The Consumer Credit Fairness Act (A2678) focuses on stopping abusive debt collection practices, the effects of which are harmful to consumers, and especially to domestic violence victims. 2) Interpretation of Orders of Protection (A1084) would help non–English speaking parties to better understand the essential terms of an order of protection as outlined by the court. 3) Frivolous Lawsuits Against Public Participation (Anti-SLAPP) (A856) would protect citizens from frivolous litigation intended to silence their exercise of the rights of free speech and petition about matters of public concern.