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Cap noneconomic damages, attorneys' fees

By Sen. Jeffrey E. Piccola

Citizens throughout Pennsylvania are growing more and more concerned about the possibility of losing access to health care — their doctors, trauma centers and hospitals. Many of our high-risk specialists have already closed their practices or have moved to other states. Hospitals and medical practices are also having enormous difficulty recruiting new doctors to replace those who have left. According to the Penn State College of Medicine located at the Hershey Medical Center, only 40 out of approximately 120 young men and women, who will be completing their medical residencies in June, have chosen to remain in Pennsylvania to practice medicine.

This malpractice crisis is hurting not only in Pennsylvania’s major populated areas, but is hitting rural areas of our Commonwealth particularly hard. In 2002, there was only one physician practicing medicine for every 1,000 residents of rural Pennsylvania. Physicians are leaving Pennsylvania, retiring early and narrowing the scope of their practices. Without a doubt, Pennsylvania’s skyrocketing malpractice costs are the primary cause. Pennsylvanians are aware that frivolous lawsuits and unreasonable jury awards for pain and suffering are significant contributing factors to the medical liability crisis.

Caps have been a cornerstone of reform in the states which have been faced with similar medical malpractice crises in the past several years. Starting as far back as the 1970s, we have witnessed state after state addressing the crisis through the enactment of caps on pain and suffering. In the recent past, West Virginia, Ohio, Idaho and Mississippi have enacted caps or lowered existing caps. In addition, the United States House of Representatives recently passed legislation that establishes a $250,000 cap on non-economic damages. Currently, this legislation is pending before the U.S. Senate.

Under pending legislation in our General Assembly sponsored by Senator Jake Corman, which I have the privilege of cosponsoring, Pennsylvania’s Constitution would be changed to authorize reasonable caps on non-economic damages in medical malpractice lawsuits, product liability cases and other types of civil litigation. Because this proposed change requires a constitutional amendment, Senate Bill 50 must be passed by the General Assembly in two consecutive legislative sessions and then approved by voters in a statewide referendum. Given that this is a lengthy process, we need to take action immediately. Otherwise, Pennsylvania could be left behind other states that have established caps.

In the last few weeks, several thousand physicians from throughout the state held rallies and public service programs in their communities as well as Pittsburgh, Philadelphia and Harrisburg at the State Capitol in an effort to pressure lawmakers to pass legislation to lower their medical malpractice premiums and demonstrate that these premiums result from excessive awards in lawsuits. The high point of the medical community’s events, known as “Code Blue,” was a rally in Harrisburg, where I was pleased to unveil new legislation to control contingency fees in medical malpractice and personal injury litigation.

This new measure would adopt the California model and establish a sliding scale for caps on attorneys’ contingency fees, which are charges that range from 30 to 40 percent of jury awards. California, which has maintained caps on non-economic damages as well as limits on attorney contingency fees since 1975, has seen a 167 percent increase in medical liability premiums since the enactment of their reform. During this same period, costs across the nation increased 505 percent. Meanwhile, Pennsylvania physicians have endured a 1,400 percent increase. I am hopeful similar relief will follow for Pennsylvania physicians, hospitals and health care systems.

I was displeased that Governor Ed Rendell’s Medical Malpractice Task Force failed to recommend caps on non-economic damages as part of its long-term plan to address the medical malpractice liability crisis. In its initial report, the Insurance Subcommittee of the Task Force established caps on non-economic damages as its number one action item. Unfortunately, Governor Rendell sent a letter to Task Force members stating that no vote should be taken on any issue. In this letter, the Governor expressed opposition to imposing caps, saying that “there are no silver bullets” to the current medical malpractice crisis. As a result, the Task Force could only recommend further study of the caps issue.

The effect of caps on medical malpractice costs has been studied and debated for 30 years. I believe the time for study has long passed. It is now time to act on this issue before the last remaining medical malpractice carriers leave the state. More delay on this critical issue will certainly spell doom for our dedicated health care providers across Pennsylvania. Although the enactment of caps and even the placement of limits on attorneys’ fees are not “silver bullet” solutions, they are significant elements in bringing long-term solutions to the crisis.

It is clear that the underlying cause of Pennsylvania’s medical liability situation is a broken civil justice system — lawsuit abuse. This system must be repaired by the adoption of a constitutional amendment to permit caps on non-economic damages and enforcing limits on attorneys’ fees. The fight we face is clear — the personal injury attorneys are waging a tremendous battle to thwart reform. I am honored to stand with Pennsylvania physicians and hospitals to fight against them to “save Pennsylvania medicine.” Together, we can bring fairness, common sense and personal responsibility to our legal system.

Jeffrey E. Piccola (R-Dauphin) is Majority Whip of the Pennsylvania Senate.

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