TORT REFORM

 

There was an unusual parade in Harrisburg on Tuesday, April 24, 2001. You probably missed it. It didn't make Wednesday's front page. The parade took place at the State Capitol. The participants, organized by the Pennsylvania Medical Society, were doctors donning white coats and stethoscopes. The reporter on Tuesday evening's local news said they were protesting higher malpractice insurance premiums, supposedly at least in part the result of "frivolous" lawsuits. Newspaper reports the following day stated the doctors were asking lawmakers to support several initiatives to ease their burden. One of these initiatives, seeking voluntary binding arbitration agreements with new patients is especially troubling to me and it should be to you as well. The term the Pennsylvania Medical Society used for this initiative is "Liability Reform."

FRIVOLOUS LAWSUITS - While I don't doubt there are frivolous lawsuits in this state, I do doubt there are many based on medical malpractice charges. There is not enough economic incentive for frivolous medical malpractice lawsuits. That's due to the high cost associated with them. In most malpractice cases Pennsylvania law requires testimony of a medical expert. As a general rule doctors will not testify against other doctors. The shortage encourages high fees for those that will. Often they must be brought in from other states. The expenses of bringing a malpractice case to court are higher than most families can afford. For this reason legal firms who specialize in medical malpractice take cases on contingency. That is, they accept a percentage of any monies awarded if the case is won. They also provide the up-front expenses of bringing the case to court. If the case does not appear winnable or if the potential economic benefits do not appear to be high enough to cover costs and make a profit, they will not take the case. They are in business to make money not lose it. The odds of winning a truly "frivolous" medical malpractice lawsuit are not very good. According to the publication "What are Tort Awards Really Like? The untold Story from the State Courts," (Ostrom et al. 1992), defendants win 70.7% of medical malpractice cases. The chances of finding a legal firm to accept a true "frivolous" medical malpractice lawsuit are slim. We are lulled by the full-page ads in the telephone yellow pages and the television commercials by malpractice legal firms into believing they are salivating for our business. That is not the case. They are all looking for the same injured 30 year-old bank vice president with a bright economic future and a winnable case.

BINDING ARBITRATION AGREEMENTS - The concept of voluntary binding arbitration is somewhat contradictory. The Pennsylvania Medical Society has suggested that doctors be allowed to seek voluntary binding arbitration agreements with new patients. It may sound innocent enough, but is it? Think about it momentarily and you will come up with some serious questions and concerns. Who among us would voluntarily agree to limit future choices? Obviously there would have to be an incentive. What could it be? If you need to enlist the services of a new doctor for any reason, will you be refused service if you are not willing to accept a binding arbitration agreement? Will you be offered lower fees if you do accept those terms? In the latter case, it will not likely be you that will make the choice, your insurance provider/carrier will make it for you. Binding arbitration agreements is just an attempt to take away one of your constitutional rights. The potential benefits of such agreements to doctors' lobbyist organizations such as the Pennsylvania Medical Society are enormous. Voluntary but binding arbitration agreement moves civil justice decision making from a jury of hard-to-tamper-with citizens to a permanently established more easily influenced arbiter or arbitration board. So far no bill allowing doctors to require new patients to sign binding arbitration agreements has been introduced into the legislature, but you can be sure it remains high on the Pennsylvania Medical Society's wish list.

LEGISLATION - With the return of the PA legislature on January 22, 2002, and with a mandate from Governor Schweiker to "fix" the state's alleged "ailing" (disputed by some) medical malpractice system, lobbying efforts intensified. Doctor's were looking for ways to reduce malpractice insurance costs. Discussed were provisions allowing doctor's to ask patients to sign documents agreeing to "caps" on malpractice awards, requiring malpractice suits be brought in the county where the alleged negligence occurred, limiting attorney's fees, privatizing the state catastrophic loss fund, and allowing awards for lost wages and future medical expenses to be paid over time. You may remember the full-page ads in newspapers as well as radio advertising. The Pennsylvania Medical Society wanted you to contact your legislators to tell them to vote for the "tort reform" package in order to avoid an insurance "crises" forcing doctors to leave the state or retire early etc. The implication was that if such legislation were not enacted, quality health care in this state was in jeopardy.

HOUSE BILL 1802 - On January 29, 2001 the PA House of Representatives approved a bill which included many of the so-called tort-reform measures that doctors had been pushing lawmakers to enact. It also contained patient-safety measures to satisfy consumer groups and others. The tort-reforms would have limited a patient's ability to sue, place limits on jury awards, set limits on filing a claim, and require awards to be paid out over years instead of in a lump sum.

According to a February 17 article in the Philadelphia Inquirer, "doctors and hospitals in Pennsylvania spent more than $4.5 million on a lobbying and public relations campaign to get the General Assembly to pass a medical-malpractice law that would lower premiums. They took out full-page newspaper ads. They bought radio time and billboard space. They appealed to patients and politicians for support." They almost got what they wanted. 

On January 29, 2001 with the passage of the House bill it appeared the hospital and doctors organizations were going to get their way. "It's a start, a good start," said Dr. Howard Richter, president of the Pennsylvania Medical Society. But not everyone agreed. Consumer rights organizations, trial lawyers, and civil libertarians were concerned about patient's rights of redress that appeared to be trampled the House Bill.

SENATE NEGOTIATIONS - The ball bounced to the Senate for the next round. After weeks of negotiations among doctors, hospitals, insurers, and trial lawyers, the Senate reached an accord and appeared ready to pass its version of the medical-malpractice bill.

PA SENATE MEDICAL-MALPRACTICE BILL - On February 12, 2002 the Senate passed a medical-malpractice bill that (1) creates independent authority to analyze medical errors at hospitals and recommend changes, (2) requires notification of patients when serious medical mistakes, (3) Increases the medical board's authority to investigate and discipline negligent doctors, (4) Requires payment over time of future medical expenses above $100,000, (5) Precludes patients from recovering damages for medical expenses already paid by insurers, (6) Requires certification of a medical expert before testimony, (7) Shortens the statute of repose (the period in which a medical malpractice suit can be made), (8) Reduces mandatory medical malpractice coverage limits from $1.2 million to $1 million, and (9) Reforms the medical CAT (insurance) Fund. Reform is the political term used here to describe for item number (9) what in fact amounts to little more than a transfer of monies from the auto CAT fund to the medical CAT fund. Just remember, beginning in 2004, when you pay a speeding fine, part of that money is going to subsidize your doctor's malpractice insurance.

 

Gone, however, were limits on malpractice awards and provisions (at least temporarily) as to where a lawsuit can be filed (change of venue).

Doctors and hospital organizations were incensed. Their attempted constitutional rights grab had failed. Two days before the Senate vote, the Pennsylvania Medical Society walked away from the talks. According to the Philadelphia Inquirer, "And yesterday (February 12), medical society president Howard Richter sent a memo to senators saying that the doctors were "unable to support a package that does not provide meaningful tort reform." The doctors want provisions that would include limiting damages for pain and suffering and shortening the statute of limitations in malpractice cases. The Senate bill contains neither." The latter, however was reinstated in compromise with the House and to appease doctors. With a few relatively minor changes, the Senate version eventually was signed into law.

WHAT HAPPENED? - So why did the Senate version drop the provisions that would allow doctors to ask patients to agree to malpractice awards caps (referred to by some as the "sign or die" provision). Perhaps the answer to that question lies in the Inquirer's quote of Erik Arneson, Sen. Brightbill's chief of staff, as saying, "the state Supreme Court would rule such a limit (caps on awards) unconstitutional and would possibly scuttle the entire bill...." Inherent in that statement is the implication that lawmakers made contact with the PA State Supreme Court as to how that provision might survive a constitutional challenge, and were told it would not. Doctors had believed their tort reform proposals were more likely to succeed with a 4 to 3 Republican majority in the Supreme Court. According to Philadelphia Inquirer reporter Josh Goldstein, in a January 13 article, "Doctors say that medical tort reform is more likely to succeed now, due to the November election of Republican Mike Eakin to the state Supreme Court. Eakin's election gives the GOP - which has traditionally been more supportive of tort reform measures - a 4 - 3 majority on the court." Obviously things did not turn out as doctors had hoped. We all owe a debt of gratitude to that / those state Supreme Court member(s) who decided it more important to uphold the state constitution and the rights of individuals, than to play party politics and appease doctors, hospital organizations, and the lobbyists who represent them

FOOTNOTE - Two provisions, additional restrictions on qualifications for expert witnesses, and shortening the statute of repose (the period in which you can sue) for adults were included in the final version of this bill. Both are conciliatory measures extended to doctor and hospital organizations specifically for the purpose of reducing the number of medical malpractice lawsuits.

Expert Witnesses - In order to qualify as an expert witness, the witness must be licensed and engaged in active practice, or retired within the last five years. Additionally, when testifying to the appropriate standard of care, the expert must practice in the same subspecialty or a subspecialty with a similar standard of and be board certified by the same board as the defendant. However, the court may waive the license, practice, specialty and board certification requirements if the expert possesses sufficient training, experience and knowledge to provide testimony regarding the appropriate standard if care. It sounds like double talk to me. Naivete might suggest there were some real concern about the quality of medical experts testifying in Pennsylvania medical malpractice cases. Reality suggests it is just another roadblock doctor and hospital organizations have managed to legislate in order to prevent you and I from suing them. In most circumstances, If you cannot find an expert witness to testify, you cannot sue, regardless of the merits of your case. In the past doctors organizations have petitioned for legislation requiring that expert witnesses be board certified in Pennsylvania. Were that provision ever to be put into law, it would substantially reduce the number of medical malpractice cases in Pennsylvania, as medical witnesses are difficult to obtain, and it is often necessary to secure them from other states.

LOOKING BACK - Were doctors' claims of rising malpractice rates contrived? No, they were not. However, the reasons for the rise are in dispute. Doctor and hospital organizations want us to believe irresponsible juries and lawyers are to blame and have gone right to the jugular by proposing legislation that would restrict an individual's right to sue. Binding arbitration agreements, caps on malpractice awards, limits on attorney's fees, shorter statutes of limitations for filing malpractice lawsuits (injuries), increasing restrictions on medical expert testimony etc. are all aimed at one thing. Doctor and hospital organizations want to limit your right to sue (and thus hold them accountable).

Others point to mismanagement of the medical malpractice segment by the insurance industry. A decade of under pricing to gain market share has driven out some major insurance companies, encouraging price gouging by those remaining.

Some point to the high rate of medical error and lack of doctor discipline. It has been commonly accepted that 2% of doctors generate 40 percent of all medical malpractice claims. More specifically, a recent study by the Stanford Consulting Group of Redwood City California, found that 2 percent of Pennsylvania's doctors were responsible for 41.5 percent of payments against doctors made by the Pennsylvania Medical Liability Catastrophe Loss Fund, which provides a second tier of malpractice coverage to doctors and hospitals.

Doctors organizations are not only unwilling to self-discipline, they, appear to have managed to impede potential disciplinary actions brought before the State Board of Medicine. The only logical conclusion I can arrive at is that doctor's and hospital organizations have made a significant "investment" in the current Republican Administration. Based on my review of available public records through 12/31/01, the Ridge / Schweiker administration has yet to discipline a PA Medical Doctor in private practice, on primary charges of malpractice, negligence, or incompetence, the greatest threats to the public health and safety (see Sections on PA BPOA and PA State Board of Medicine).

ARE DOCTORS LEAVING THE STATE? - The Pennsylvania Medical Society claimed doctor's were leaving the state and retiring early because of the high costs of medical malpractice insurance. However, a January 18, 2002 letter from the director of the PA Medical Professional Liability Catastrophe Loss Fund to Fund Advisory Board Members states there were more physicians practicing and paying a surcharge in 2000 than in 1999. As for 2001, according to Director John H. Reed, "Based on historical patterns, my staff is confident that when the final numbers are in we will see that the census of physicians practicing in Pennsylvania did not significantly decrease in 2001, if at all."

THE REAL QUESTION - The real question is not whether malpractice insurance costs have risen or even if doctors are leaving the state. The real question is why are the rest of us expected to pay the price for the failure the medical malpractice insurance industry, doctor and hospital organizations, and the Ridge / Schweiker Administration to ferret out the 2% of doctors that account for 40% of malpractice claims. What other industry asks for constitutional sacrifice by the masses in order to allow them to continue to practice profitably without accountability? There are few industries with the power and resources of medical and hospital organizations in this state, and therein lies the likely answer in my opinion. Politics is a dirty business and votes can be bought and sold. Unless and until real campaign reform becomes law in Pennsylvania, you can expect more of the same.

JUST BECAUSE IT'S LABELED "REFORM" DOESN'T MEAN IT'S BETTER - At some point in the future we can expect to once again read and hear the ads from the Pennsylvania Medical Society asking us to contact our legislators to encourage them to vote for "tort reform" legislation. They will suggest damage to our health care system if we do not. They will not give up. On March 11, 2002 the American Medical Association said that it would be stepping up lobbying and mounting an ad campaign on behalf of tort reform. According to the Philadelphia Inquirer the AMA's strategy would be directed at lawmakers and courts in about 25 states. Print and broadcast ads meant to sway public opinion are also part of the plan.

WHAT CAN YOU DO TO PREVENT IT FROM HAPPENING? - Without any further restrictions on the individuals right to sue for reparations based on medical malpractice/negligence, a considerable number of individuals are already unlikely to find legal help. Due in part to past legislative actions, those individuals would include seniors, children, and non-working spouses. Further tort reform legislation will further erode the ability of these groups to find legal help. The more tort reform legislation enacted the greater the pool of those having no recourse when injury or death results from medical malpractice. The reason is the same cited earlier, namely economics. According to Clifford A. Rieders of the Pennsylvania Trial Lawyers Association, "malpractice suits can cost upward of $100,000 - too much for a lawyer to invest in a case unless the patient had a well-paying job and could win substantial economic damages."

The best way to prevent further erosion of our rights under the guise of medical malpractice reform is to elect officials who will maintain their independence and uphold the constitutional rights of individuals. Those officials in order of importance are:

(1) PA State Supreme Court - We don't frequently have the opportunity to vote to add a member to the court, but please make a special effort to vote when the opportunity arises. Twice before, in 1975 and 1996, legislators irresponsibly passed malpractice reform legislation at the expense of victim's rights. Both times, key parts of the laws were struck down by the state Supreme Court. This year legislators were smart enough to consult with members of the court before passing legislation, but the net effect was the same. That's three times now that the Supreme Court has bailed us out. They will continue to do that, but only if we elect members with the attributes cited above.

(2) Governor - The Governor appoints members to the licensing boards including the State Board of Medicine and the State Board of Osteopathic Medicine. Through these appointments and by establishing policy directives within the PA Department of State, the Governor has ultimate control of policy regarding disciplinary actions against doctors, i.e. protecting the public health and safety. The Ridge / Schweiker Administration record in this regard is abysmal.

One of the provisions of Act 13, the final signed into law version of HB1802, is the establishment of a Patient Safety Authority, intended to improve Patient Safety at medical facilities. There is some potential for improved patient safety with the establishment of this entity, but its provisions are only as enforceable as the Governor and his appointees want it to be. Just as the Ridge / Schweiker administration's Department of State Medical Boards ignore their requirement to protect the public from medical malpractice, negligence, and incompetence, so too can the Patient Safety Authority, the State Board of Health, and the DOS State Medical Boards ignore provisions of Act 13. Please read the section titled "Patient Safety" for more details.

(3) Senate and House of Representatives - Integrity is at a premium here as well. Independent-minded issue-oriented legislators willing to buck party politics and vote their conscience are in the minority. Their importance is elevated by the fact that their independence makes their votes crucial in many situations. Should you be successful in finding such a candidate and should your candidate win election, continue to provide encouragement and support after the election. Let this candidate know from time to time that you appreciate his/her defensive stand against further attempts to erode your constitutional rights. The pressure to submit to political conformity will be enormous.

Generally speaking most democratic legislators have favored protecting our constitutional rights and our right to hold doctors accountable, while most republican legislators have favored sacrificing them if necessary to appease doctors and hospital lobbyists. However, there are democrats and republicans on both sides of the issue and it would be unfair of me to imply otherwise. If your candidate is independent-minded and issue-oriented it should not matter which party he or she is affiliated with. If your candidate is going to truly represent you and the rest of the citizens of your district, he or she should not ever consider voting for legislation that favors any special interest group over the rights of the citizens of his or her district.

Recently, I received a newsletter from my State Representative, retiring 101st Legislative District Representative Ed Krebs, a legislator I consider to be independent-minded and issue-oriented. The front cover of the newsletter contains a farewell message to his constituents. As I read it I was struck by it's frank honesty and appropriateness to the message I was trying to present here. His remarks reflect 12 years of service in dealing with the reality of the Pennsylvania General Assembly. His words share knowledge and experience from someone who has nothing to gain from saying them. For those of you who have not received his newsletter, I have copied his farewell message onto this website. It is well worth reading.

OTHER STEPS In addition to selecting candidates wisely, when doctor and hospital organizations make their next assault on our constitutional rights, contact both of your legislators and let them know your position on this issue. Let them know you are holding them accountable. Finally, consider joining an organization that will lobby legislators on behalf of your rights and your protection on issues involving patient safety. One such organization is "Citizens for Consumer Justice, Architects Building, 117 South 17th Street, Suite 311, Philadelphia, PA 19103, (telephone (215) 569-8220 or 1-877-841-9976 toll free)." Membership is $20 annually or $10 for those on fixed or limited income.

 

 

Farewell Message from Representative Krebs

 

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