State-level tort reform proposed

A handful of long-sought malpractice reform measures are on the state Legislature’s docket this year, and proponents are optimistic about their passage.
“Politically, the stars are as aligned as have been in a long time. Gov. (Tom) Corbett has made it clear that he supports tort reform, and the House leadership has made it clear that they support tort reform,” said Scot Chadwick, vice president of governmental affairs for the Pennsylvania Medical Society.

Pennsylvania’s legal climate compares unfavorably with that of other states, making it less attractive and more expensive for health care providers to operate in the commonwealth, the Hospital & Healthsystem Association of Pennsylvania, the Pennsylvania Medical Society and others have argued.

The two groups joined the Pennsylvania Chamber of Business & Industry and 47 other groups March 28 to express their support for tort reform.

“Broad-based liability reform in Pennsylvania is good for all Pennsylvanians, from patients, physicians and hospitals, to employers and civic organizations, to the Girl Scouts and our Little League teams,” Dr. Marilyn Heine, the medical society’s president-elect, said at the event.

“The benefit of broad legal reforms will be felt by all of us because each of us has been the victim of Pennsylvania’s out-of-control legal system. Everything we buy has a higher price tag due to lawsuit abuse,” she said.

Three pieces of malpractice reform legislation are in play. In January, legislators introduced House Bill 1 and Senate Bill 2, both of which would affect the way liability is divided among parties.

Under current law, if one of multiple plaintiffs cannot pay damages, the entire amount falls on the others. The new legislation, which affects provisions known as joint and several liability, would divide damages based on fault.

“I think it does speak to the issue of fairness — it’s needed,” said state Sen. Pat Vance, a Republican and registered nurse who represents Cumberland County and parts of York County.

A similar measure passed the state legislature and was vetoed by then-Gov. Ed Rendell in 2006.

“I think the odds of having some form of joint and several liability (reform) is as good or better this year as it’s been in a long time,” she said.

The House began discussing the measure in late March, with the Senate scheduled to take it up in mid-April. Most states have such provisions, Chadwick said.

The third measure — House Bill 495, better known as the apology legislation — would allow providers to express sympathy about a negative outcome without fear their words would be used against them in a lawsuit.

The measure passed the House on a 117-27 vote, and now its companion bill, No. 565, is in the Senate.

“After a bad outcome, physicians very much want to talk to their patients, and patients want answers,” Chadwick said. “This legislation would provide the ability for physicians and patients to have open and candid discussions.”

The results of a statewide survey about tort reform were unveiled at the March 28 event.
Harrisburg-based Susquehanna Polling & Research performed the survey of 800 registered voters from Feb. 24 to March 1.

Three-quarters of respondents said they believe state government needs to do more to improve the overall legal climate in Pennsylvania, and 65 percent said they believe the number of lawsuits in the state is too high.

In addition, large majorities of respondents appeared to support the core of the apology legislation and joint and several liability.

Eighty-two percent of respondents answered “no” to the question, “Should individuals or businesses be required to pay 100 percent of the damages when they are only partly to blame?”

Eighty-four percent of those surveyed answered “yes” to the question, “Should doctors and other medical professionals be allowed to express sympathy or personally apologize for unintended outcomes on a medical procedure as a way to improve communications with their patients, without the fear of having these statements used against them in a court of law?”

The Pennsylvania Medical Society and the Hospital & Healthsystem Association of Pennsylvania also are seeking changes to the laws governing a certificate of merit.
A plaintiff’s attorney is required, within 60 days of a lawsuit’s filing, to certify that the contentions therein are backed up by an expert legal opinion.

This leads to time and money being spent on suits that are later found to be without merit, Chadwick said. The medical society and association would prefer to see the expert opinion itself be certified before a suit can proceed.

Additionally, the Pennsylvania Medical Society also would like to see increased immunity protections for health care providers who work in the emergency room or treat the uninsured, as well as caps placed on non-economic damages.

But to do the latter would involve changing the state Constitution, and therefore constitute a lengthy and complex process, Chadwick said.

“Pennsylvania’s climate is toxic compared to other states’, and we have to level the playing field for the purpose of creating and retaining physicians,” he said.

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