Yesterday The New York Times featured an article about an Obama-led initiative to reduce medical malpractice costs. The process is known as judge-directed negotiation and gets judges involved before cases move towards trial. Judges with medical expertise are assigned cases early on and hold settlement conferences with the lawyers only months after the initial filing. Currently, New York is the only state employing the new legal tactic under the $3 million grant. The approach started in the Bronx, but has now moved to Brooklyn and Manhattan. In the fall, judge-directed negotiation moves outside New York City and into Buffalo, with hope that other states use New York as a model.
The approach is bound to have its fair share of supporters and critics. Michelle Melo, a Harvard law professor evaluating the process, said that the negotiations represent a major cultural change in medical malpractice cases. “Ordinarily when the parties come to a settlement conference it’s late in the game,”she asserts. “It’s often a pro forma exercise rather than an attempt to grapple with the tricky issues in the case.”
Suzanne Blundi, the deputy counsel of the Health and Hospitals Corporation, states that the average payment in medical malpractice cases last year declined to about $428,000 from $567,000 in 2003. Judge-directed negotiation “forces parties to really evaluate their case and look at the strengths and weaknesses”, Blundi stated.
On the other hand, Nicholas Timko, the president of the New York State Trial Lawyers Association, stated that the meetings can be daunting and that “there’s pressure to take less than might be fair compensation.” Under Timko’s argument, the approach is anti-plaintiff as clients do not have any say in the negotiations. In some instances, plaintiffs may feel that they are better of going to the jury.
It appears that the approach will be surrounded by debates of judicial economy v. judicial fairness. Supporters will point out the potential decrease in medical costs, such as the $1 billion estimate that the program could save if it is adopted nationally. However, others could argue that this approach may be hard to institute nationally. A key aspect of judge-directed negotiation is having a judge with better-than-average medical knowledge. While New York may have the volume of judges with this type of expertise, other parts of the country may not.