Home / Medicine & the Law / Tort reform may not reduce liability

Tort reform may not reduce liability

By Edward Rubenstone, Esq.

Although the recently enacted medical malpractice tort reform legislation, Act 135 signed by Governor Ridge on November 26, 1996, has been labelled “historic” and a “major victory” by some, including the Pennsylvania Medical Society, it is virtually certain that the changes made by the new Act to the law of medical malpractice will not have any significant impact upon the handling and trial of malpractice lawsuits in this Commonwealth. In fact, certain provisions of this Act actually increase a doctor’s liability exposure and threaten the imposition of more severe sanctions on doctors who settle or litigate and lose a malpractice case.

First, much has been made of the Act’s so-called cap on punitive damages. But what many doctors fail to appreciate is that the number of cases in which punitive claims ever go to trial, let alone result in a punitive award, are miniscule, and those few involve extreme and outrageous conduct, generally verging on, if not amounting to, intentional conduct. The new Act places a $200,000. cap on punitive awards, but the cap is lifted if the plaintiff can prove that the doctor’s wrongful conduct was intentional. So, for all intents and purposes, little has changed. In addition, the new Act requires that, if a jury should decide to award punitive damages, the punitive amount must be at least $100,000 (except in those cases where the compensatory damage award is less than $100,000.). Both the logical and the legal basis for establishing a cap on punitive damages are questionable and of suspect constitutionality, and this provision will certainly be challenged in the courts. The same comment can be made, in even more forceful terms, for the establishment of a mandatory minimum floor on such awards.

On this same issue, in cases where punitives damages are claimed, a plaintiff is now required to prove that he has a prima facie claim for punitives before discovery into the assets of the doctor or hospital can take place. And, when a punitive claim is permitted, the trial must be bifurcated with the punitive award being considered by the jury only after it has first found in favor of the plaintiff and has awarded compensatory damages. Again, however, in real life, asset discovery never goes forward until a judge has first determined that the claim for punitive damages is well-founded, and many plaintiff’s lawyers prefer to bifurcate and to try the punitive issue after they have obtained a liability verdict.

Another puzzling aspect of this legislation is its expansion of the doctrine of informed consent. Prior to this Act, doctors were obligated to provide informed consent to patients only in the surgical setting, and the courts have regularly refused to expand the scope of informed consent liability. Now, a patient must also be given informed consent: a description of the procedure and of the “risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure,” in each of the following settings: prior to the administration of anesthesia, blood transfusions and radiation and chemotherapy; prior to the insertion of a surgical device or appliance; and before a doctor uses experimental medications, devices or procedures, or uses non-experimental medications, devices or procedures in an experimental manner.

Because of the expanded application of the informed consent doctrine, the prudent practitioner would be foolish to fail to fully and carefully document his or her informed consent procedure, with an eye to devising a routine practice that, if challenged in a lawsuit, would maximize the likelihood of proving—in a courtroom—that the required information was given to the patient. For example, doctors could provide every patient, as soon as possible, with a pre-printed handout that fully describes the contemplated procedure and all of its risks and alternatives, in detail, and require that the patient acknowledge, in writing, that it has been received and read and that all questions have been answered. In addition, the presence of a witness to the informed consent discussion, such as a nurse, technician or resident, who could corroborate the doctor’s testimony that the patient was advised of the required information, or even better, a tape recording of the informed consent discussion with the patient that could be played in the courtroom, would avert most, if not all, informed consent claims. Now more than ever, surgeons, radiologists and other physicians who practice in the vulnerable areas should address this issue without delay.

Third, the potential for the imposition of administrative sanctions on a doctor following an unfavorable verdict or settlement of a malpractice claim has also been created by Act 135. For years, doctors who lose or settle claims have been required to report these outcomes to the national data bank. Now, in addition to this requirement, insurance carriers and the CAT Fund are required to report this information to the applicable state licensing board. When it receives this report, the licensing board must conduct its own investigation and, if appropriate, hold a hearing and impose sanctions. So, assuming the state boards do their job, a doctor on the losing end of a law suit will not only be registered in the national data bank, but may be called to Harrisburg to defend him or herself once again before the licensing board. As for legal representation in these proceedings, fees and costs will surely be the individual doctor’s responsibility.

Another major provision of the Act is the requirement that, before a lawsuit is filed, the plaintiff’s attorney must obtain a report from a qualified physician stating that the defendant doctor or hospital has violated the applicable standard of care. Sanctions can be imposed by the courts if this rule is violated or if it is ultimately found that the lawsuit (or a provider’s defense to it) is frivolous. But these provisions will also likely have little or no effect in practice. Competent plaintiff’s lawyers rarely file suit before the case has been reviewed and approved by an expert. Most good lawyers even have a preliminary report prepared by that expert before preparing the Complaint. At best, only a few, marginal cases will fall by the wayside due to this provision. Similarly, for many decades, judges have had the power, by statute, to impose sanctions on lawyers who file frivolous cases but this power is rarely, if ever, used, and no reason exists to believe that Act 135 will alter this practice.

Finally, the Act contains a provision that permits a doctor who is mistakenly or improperly named as a defendant in a malpractice case to file an “affidavit of non-involvement.” Specifically, if the doctor-defendant did not and was not obligated to provide care to the plaintiff, either directly or through agents or employees, the filing of the affidavit will get the doctor out of the case. But, before you start dictating your affidavits: Beware! If it turns out that the affidavit is false or inaccurate, the provider will not only be put back into the case, but can also be made to pay the fees and costs that other parties were forced to spend to prove that the affidavit was false. Second, by filing the affidavit, the statute of limitations on the claims made against the provider is tolled. As a result, if the plaintiff discovers, years later, that the affidavit was false, suit can be reinstituted even if the original case is long since over and done. Frankly, if a doctor that I represented told me that he wasn’t involved in the case and wanted to file this affidavit, I would urge him or her to wait and allow me to participate in the early stages of the case and to gather the necessary facts. In virtually every case, if a doctor is truly “not involved,” the plaintiff’s lawyer will agree to a dismissal or the court will order one. Through this process, the risks involved in the filing of an affidavit are eliminated, as is the uncertainty caused by the tolling of the statute of limitations.

All in all, at least as to the changes that it makes to the law of medical malpractice, Act 135 appears to be a non-event. Certain provisions, if they are enforced by the courts, may speed up the litigation process somewhat by setting deadlines for completion of discovery and trial. A judge can now compel the parties to participate in a mediation conference, and courts are now required to conduct at least one settlement conference prior to trial. But the substantive changes are illusory or inconsequential and clearly do not address many of the legitimate concerns, such as the collateral source issue or requiring the periodic payment of lost earnings damage awards, that have been raised by the medical community. In addition, as a result of the passage of this Act, legislative leaders have made it clear that no attempt to revisit malpractice tort reform will be made for at least the next four years. So, this is it, at least until the next millenium.

Edward Rubenstone, Esq., is with the Philadelphia law firm, Groen, Laveson, Goldberg & Rubenstone.

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