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Pennsylvania’s medical liability climate is one of the most complex of all 50 states.
In fact, in a recent Harvard School of Public Health report described the Keystone
State as being in the midst of an “extreme-level” medical liability crisis. Doctors
in Pennsylvania are faced with some of the highest medical malpractice insurance
rates in the country, and for the many physicians that cannot afford to pay those
premiums, the only resolve has been to retire or move to an adjacent state.
To better understand the current condition of Pennsylvania’s medical liability climate,
it is necessary to look back at the years leading up to the Mcare Act of
2002.
The Malpractice Insurance Crisis
At the start of the decade in 2000, most members of the medical field recognized
that Pennsylvania was drowning in a liability crisis. Hospitals across southeastern
Pennsylvania were having difficulty keeping certain specialists on staff because
of fear of lawsuits and skyrocketing insurance costs; all the maternity wards in
Northeast Philadelphia had closed; and Chester County did not have a single emergency
neurosurgeon. The high volume of malpractice cases saddled most Philadelphia-area
doctors with malpractice insurance premiums exceeding $100,000 annually, while million-dollar-plus
jury verdicts were becoming increasingly common.
This malpractice problem and its effects appeared to be accelerating each year.
In 2001, 704 medical school residents stayed in Pennsylvania after completing their
residency training; by 2003, that number had fallen to 285. People within the Pennsylvania
medical community rightly began to worry about their citizens’ current and future
access to healthcare.
The Mcare Act
Acknowledging that Pennsylvania was rapidly approaching an access-to-care tipping
point, the state legislature passed Act 13, the
“Medical Care Availability and Reduction of Error (Mcare) Act” of 2002.
The detailed legislation reformed mandatory medical professional liability insurance
amounts; replaced the existing CAT Fund that covered catastrophic loss liability
with the Insurance Department-supervised
Mcare Fund; enacted certain tort reforms that required a certificate of
merit, ended “venue shopping” as well as capped punitive damages; and ushered in
new requirements in the area of patient safety, including the establishment of a
Patient Safety Authority. Initially, the Mcare Act provided modest savings to general
practitioners and slightly more for specialists through discounts on surcharges
and assessments.
Physicians were still required to maintain medical professional liability insurance;
however, in 2003, the maximum required coverage was reduced to $1 million per occurrence,
from $1.2 million ($500,000 in basic coverage and $700,000 from the CAT Fund to
$500,000 basic coverage and $500,000 from the new Mcare Fund in 2003). Aggregate
annual limits were also lowered.
The Mcare Act’s tort reforms are intended to have a long-term, positive effect on
the medical liability system where positive effects would occur in future
years, with the full impact of the savings realized three to five years down the
road. In particular, the act limits when awards of punitive damages may be made
and specifically provides that, if punitive damages are awarded, the damages may
not exceed 200 percent of the compensatory damages awarded. The minimum punitive
damage award that may be made is $100,000 (unless a lower verdict amount is returned).
The plaintiff would receive 75 percent of the punitive damage award and 25 percent
would be paid to the Mcare Fund. This would be used to offset medical professional
liability surcharges.
Of special significance to the Mcare Act is that it grants power of remittitur to
the courts(i.e. allows the court to reduce a jury verdict that is deemed to be excessive).
In deciding a motion to reduce a jury verdict on the ground that the award is excessive
(a motion for remittitur), the court is required to consider the availability or
access to healthcare if the defendant physician is required to satisfy the verdict.
The intent of this provision is to permit doctors and hospitals to have verdicts
lowered by a judge if it would force a doctor out of business or force a hospital
to cut services, thereby damaging the community.
Measurable Progress Is Being Made
While Pennsylvania continues to be considered a medical liability “crisis state,”
many consider the Keystone State’s Mcare Act a measurable success. In April 2008,
Ronald Castille, Chief Justice of the Pennsylvania Supreme Court, released a report
entitled
"Latest Medical Malpractice data shows continued decline in number of cases and
verdicts". The report highlighted the fact that in 2007 there were 1,617
filings, representing a 40.8 percent decline from the “base years” 2000- 2002. In
Philadelphia, the state’s judicial district with the largest caseload, the decline
was more than 50 percent during the same period.
Perhaps the greatest proof is in the premiums. While Pennsylvania still ranks as
one of the top states for medical malpractice insurance rates, both the cost of
primary coverage with one of the state’s largest medmal insurers, and Mcare surcharges
have experienced declines since 2005. In 2008, a large insurance company serving
Pennsylvania announced an immediate, overall 11-percent rate reduction for
its physician insureds. Another carier soon followed suit by lowering its premiums
by 6 percent, effect July 1, 2008.
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