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Caps for medical malpractice only

By Sen. Connie Williams

Medical care in Pennsylvania is in desperate trouble. The medical malpractice insurance crisis has reached epidemic proportions. While the remedies that have been enacted so far will help in the long run, they have not yet increased the number of insurance companies that are selling medical malpractice insurance in Pennsylvania, nor have they caused those few who do to lower their prices. Many believe that enacting a cap on non-economic damages is the only solution to the crisis. I’d like to share with you my common-sense proposal on this issue.

I have introduced a constitutional amendment, SB 728 that would allow for caps in medical malpractice cases only. As you may or may not know, SB 50 is the current legislation being promoted in Harrisburg as a solution to the medical malpractice insurance crisis. What most people don’t understand, however, is that SB 50 provides for caps on a broad range of liabilities, including product liability. SB 50 would cap non-economic damages in suits against manufacturers of defective products that cause unnecessary injuries. It would cap damages in suits against oil companies and tobacco companies whose actions harm the public health and safety. But that’s not the crisis that is facing Pennsylvania’s patients and their doctors.

My proposal, SB 728, will help doctors and hospitals because they are the ones in need of relief. My proposal would cap non-economic damages against doctors because they are the ones who are leaving the state in droves. My proposal would cap non-economic damages against hospitals because they are the ones that are being driven into bankruptcy.

There are many legislators, including myself, who are concerned about the wide scope of Senate Bill 50. I believe my approach is the “common sense” answer to the problem, and one more acceptable to legislators who may still be on the fence on this issue. Doctors and hospitals are facing a crisis. Doctors and hospitals need relief now. Doctors and hospitals are the ones we should help. I think many legislators will be responsive to helping those in need than in providing carte blanche relief to anyone sued in Pennsylvania.

Please know, however, that regardless of whether we enact SB 50 or SB 728 or any other legislation to allow for caps, that caps are still not a short-term solution to the crisis.

Because Section 18 of Article III of The Pennsylvania Constitution states that except for workers’ compensation cases, ” in no other cases shall the General Assembly limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property, and in case of death from such injuries, the right of action shall survive…”, in order to enact caps, we must amend the Constitution.

There are two ways to do this. Both require that the amendment be passed by the legislature, and then put on the ballot for citizen approval in the next statewide election. The normal procedure requires that the amendment be passed in two consecutive sessions. Since each legislative session takes two years, it is possible that it will take five years at most or three in the least, for the Constitution to be amended.

The second way to amend the Constitution is through an emergency amendment. In this case, the legislation must be approved by two-thirds of the legislature. Should this happen, the question still must come before the voters in the next statewide election. While this process is quicker, there have only been three times in the history of Pennsylvania that emergencies have been declared to amend the Constitution and these were to allow for appropriation of emergency funding for natural disasters.

As to the caps themselves, the process discussed above is only to amend the Constitution. It does not set limits. Should the Constitution be amended, legislation is then needed to specify amounts. This, of course, can be done quickly. In discussions on the issue, the California cap of $250,000 is most commonly used. While I support caps, I am not in favor of setting all caps at $250,000. According to a May 22, 2003 article in the Philadelphia Inquirer entitled, ‘West Coast Answer Is Seen As Model Malpractice System,’ “The limit of $250,000 set in 1975 is now worth about $73,000.”

We should explore, as well, the idea of a range of caps for different injuries based on the severity of the injury. Because insurers state that they need predictability and stability to do business, I would think that whether the cap is $250,000 or $1 million is not as important as simply knowing there are caps and what the highest cap will be.

While caps seem to be the center of discussion about the medical crisis in Pennsylvania, there are other factors contributing to the problem. In southeastern Pennsylvania in particular, one HMO has a virtual monopoly on the market. Reimbursements to doctors are often less than federal Medicaid reimbursements. To address this issue, I have introduced legislation to allow doctors to jointly negotiate their fees with health insurance providers. Combine low reimbursements, high malpractice insurance costs, as well as the overhead in operating a physician’s office, and it is easy to see why doctors are retiring or moving away. My bill would allow doctors to join together to negotiate their fees with insurers rather than having to accept the low rates currently being offered.

I have also introduced legislation to establish a special medical malpractice court system in Pennsylvania, with specially trained judges. Finally, I’ve introduced legislation to provide a 10 percent tax credit on medical malpractice premiums.

Doctors need relief now. We need to do something soon. We still have a long way to go. In the meantime, I give credit to Governor Rendell for his plan to eliminate the MCARE payments by surgeons, neurosurgeons, orthopedists and obstetricians and to halve the MCARE payments by the rest of the doctors. He has pledged to find a way to pay for these costs to provide short-term relief to our doctors. If necessary, we need to continue the elimination of MCARE payments until the premiums become more widely available and affordable.

Pennsylvania is a wonderful place to live, to work and to play. It won’t be if we don’t have doctors here to keep us well.

Connie Williams (D-Montgomery/Delaware) is a Pennsylvania state sentator

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