Statement from Mark Kris; New York Tort Reform Now

"Reports today that New York's legislative leaders and Governor Paterson have reached a secret agreement on the removal of the statutory limits on medical malpractice contingency fees, if true, will have a devastating effect on the New York economy for every single one of us ... except some trial lawyers.

The proposal would dramatically increase payments to personal injury lawyers at the expense of their clients and all New Yorkers. NYTortReformNow.org and its members are very concerned about the consequences of this legislation.

In response to past medical malpractice insurance crises, New York State enacted a law to statutorily limit the percentage that a malpractice attorney can take from a plaintiff's award. The statutory limitation on contingency fees was initially enacted during the mid-1970s crisis, and was substantially revised during the mid-1980s crisis. The purpose of this important statute is to diminish the incentive for personal injury attorneys to needlessly drag out litigation in the hope of achieving a larger fee as well as to discourage the bringing of frivolous claims.

Moreover, these limitations help to assure that a plaintiff is fairly compensated for his or her injury, and that major parts of the awards are not diverted to pay what are often huge attorney fees in addition to all other disbursements that a suing plaintiff must reimburse their attorney. Under the current law, attorneys are very substantially compensated in medical liability actions. In the case of a $1 million award, for example, an attorney will receive a fee of $237,500.

Elimination of these sensible and equitable limitations would benefit no one except trial attorneys. If this law were to be repealed, it would encourage the filing of even more groundless lawsuits, needlessly extend litigation, and significantly drive up the cost of liability insurance at a time when these costs are already unaffordable.

Trial lawyers have had the temerity to argue that removal of the medical malpractice fee schedule is needed to prevent the premature settlement of cases by lawyers who will not vigorously prosecute a claim, due to the reduction in the contingency fee payable on larger cases. The problem with this argument is simply that attorneys are bound by the Attorney's Code of Professional Responsibility to vigorous pursue their client's interest, within the bound of the law.

If some personal injury trial lawyers are putting their own interests above their clients' interests, professional misconduct actions and removal from the bar are the solution, not the reduction in the portion of recovery payable to the plaintiff.

New Yorkers simply can not afford this affront to our civil justice system. The cost of doing business and living in New York is high enough. Proposals such as these will make it prohibitive."

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NYTortReformNow.org is a broad based coalition of hardworking New York business leaders, professionals, local government leaders and consumers who are committed to bringing meaningful reform to New York State's tort laws.