Medical community hails legislation
HARRISBURG – The medical community hailed Senate passage on Thursday of the “Fair Share Act,” a bill which abolishes “joint and several liability’ for any defendant found to be less than 60 percent liable for causing an injury. “This bill is a common-sense measure that maintains a plaintiff’s right to collect damages while bringing fairness, balance, and stability to Pennsylvania’s liability insurance system,” said Carolyn F. Scanlan, president and CEO of the Hospital & Healthsystem Association of Pennsylvania. “This critical reform will help to keep doctors practicing, hospital services open, and patients healthy.”
In its current form, joint and several liability holds each defendant in a lawsuit financially liable for the full amount of a damage award, even if the defendant’s legal responsibility is deemed to be minimal.
Under the bill, passed last week by the House and supported by Gov. Mark Schweiker, defendants who are found to be less than 60 percent liable for a medical mistake would not have to pay the full award unless the mistake was found to be intentional. Instead, a defendant who is deemed responsible for 10 percent of the error would pay 10 percent of the total award.
“What’s fair is fair. If you’re responsible for 10 percent [of the medical mistake] you should only be responsible for 10 percent [of the payout] versus 100 percent,” said Chuck Moran, spokesman for the Pennsylvania Medical Society, which represents about 19,000 doctors in the state.
“Joint and several liability is inherently unfair to hospitals and physicians,” Scanlan said. “It results in needless lawsuits because personal injury lawyers seek to sue those who were only remotely involved.”
With the change, insurers will be more willing to do business in Pennsylvania, some healthcare officials predicted. In the past few years, a number of insurers have stopped offering malpractice policies in the state either because they went bankrupt or because they no longer found it financially feasible to do so. The insurers that have remained have substantially boosted their premiums in recent years to keep up with rising claims.
Pennsylvania hospitals are estimated to be paying more than $180 million in additional premiums for medical liability insurance compared to one year ago, according to a statewide survey of medical professional liability coverage released by HAP in May. Meanwhile, doctors in specialties at high risk of being sued – neurosurgeons, orthopedic surgeons, general surgeons and obstetricians – have also seen their rates skyrocket. Since 1997, the state’s major malpractice insurers increased their rates for certain specialties between 80 percent and 147 percent, according to the Pennsylvania Medical Society.
The rising premiums forced some in the medical community to either stop offering their high-risk services or move to states where insurance is cheaper.
“We expect that enactment of the Fair Share Act will spare many health care providers the difficult decision to divert patient care resources to pay exorbitant insurance premiums, or cut services,” Scanlan said.