PaTLA opposes federal and state bills 
on damage caps

(02/26/2003)

by Craig Giangiulio

The Pennsylvania Trial Lawyers Association is currently fighting a two-front war on damage caps. At the federal level, a bill that would limit patients� recovery of non-economic damages in medical malpractice cases and set restrictions on other types of health care negligence claims is gaining ground, while in Pennsylvania, a proposed amendment to the state constitution would allow the General Assembly to limit compensation of non-economic damages in all types of injury cases.

�These are dark days for injured victims and consumers here in Pennsylvania and nationwide,� said PaTLA President David L. Lutz. PaTLA is working in conjunction with the Association of Trial Lawyers of America (ATLA) and consumer groups to fight this legislation and prevent further erosion of patients� rights, according to Lutz. �PaTLA�s message in this battle is clear: Caps of any kind will have a disastrous impact on victims and their families,� Lutz said. �Doctors and consumers must know that medical malpractice insurance rates won�t be reduced by limiting rights and harming patients,� he added.

The bill in Washington is H.R. 5, or the HEALTH (Help Efficient Accessible, Low-Cost, Timely Health Care) Act. H.R. 5 was introduced in Congress on Feb. 6 and is sponsored by U.S. Rep. James C. Greenwood (R-8th dist.). It is similar to H.R. 4600, which passed the House of Representatives last year but was not taken up by the Senate. H.R. 5 limits non-economic damages to $250,000, but also contains many other serious restrictions, according to Lutz.

Key components of H.R. 5 are:

• Caps non-economic damages at $250,000, regardless of the number of parties against whom the action is brought;
• Applies to not just med-mal, but also product liability, nursing home, and insurance claim reform;
• Reduces the amount of time an injured patient has to file a lawsuit to one year from the date the injury was discovered or should have been discovered, but not later than three years after the �manifestation� of injury;
• Eliminates joint and several liability for economic and non-economic damages;
• Restricts contingent fees to (1) 40% of the first $50,000 recovered, (2) 33% of the next $50,000 recovered, (3) 25% of the next $500,000, and (4) 15% of any recovery in excess of $600,000;
• Gives defendants in med-mal and medical product liability cases an absolute right to introduce evidence of �collateral source� benefits;
• Provides that punitive damages may only be awarded if the plaintiff proves by a standard of �clear and convincing evidence� that (1) the defendant acted with malicious intent to injure the plaintiff or (2) the defendant understood the plaintiff was substantially certain to suffer unnecessary injury, yet deliberately failed to avoid such injury;
• Prevents a plaintiff from seeking punitive damages initially;
• Requires that health care providers not be named as defendants in the same cases as pharmaceutical or medical device manufacturers;
• Other restrictions, including preemption of state law.

Lutz called H.R. 5 a bad mix of anti-consumer provisions. �If passed, H.R. 5 would severely limit the ability of patients and other consumers to hold health care providers and the makers of medical products accountable while doing nothing to lower medical malpractice insurance rates,� Lutz said.

In Washington, H.R. 5 is gaining momentum. President Bush has expressed his support for this legislation at a press conference in Scranton in January and again during his State of the Union address. To date, one hearing was held on H.R. 5 on Feb. 10 at Saint Mary Medical Center in Bucks County. The hearing included testimony from Gov. Ed Rendell, the doctors, the president of the Pennsylvania Medical Society, and representatives of consumer groups. Also testifying was 17-year-old Heather Lewinski, who at the age of eight was left scarred for life as a result of medical negligence by a doctor in Pittsburgh. Another hearing is scheduled in Washington. If H.R. 5 is passed, it could face a constitutional challenge.

In Pennsylvania, S.B. 50 is a resolution to change Section 18 of Article III of the Pennsylvania Constitution to allow the General Assembly to limit recovery of non-economic damages. Sens. Jake Corman (R-34) and Jeffrey E. Piccola (R-15) introduced this bill on Jan. 14. Because such a change requires a constitutional amendment, S.B. 50 must be passed by the General Assembly in two consecutive legislative sessions, and then approved by voters in a statewide referendum. The process could take 3-4 years to effect a change to the constitution, according to Lutz. �PaTLA is strongly opposed to the Legislature tinkering with the Pennsylvania Constitution,� Lutz said.

In Pennsylvania, the House GOP has announced �Emergency Session� hearings by the House Republican Policy Committee for February and March. According to Lutz, the GOP�s goal is to put pressure on Gov. Rendell in hopes of speeding up the constitutional process. PaTLA is encouraging members to attend these sessions with their clients to present the victims� side in the med-mal issue. S.B. 50 is now in the Senate Judiciary Commitee.

Lutz said he knows that PaTLA is fighting an uphill battle. �Our opponents have been effective in making the public think that we need caps or our doctors will leave the state,� said Lutz. �The term �caps on damages� is a great sound bite, but there�s no evidence that caps or other restrictive measures limiting victims� rights would decrease premium costs or increase the availability of medical malpractice insurance,� he added. �PaTLA�s message continues to be that insurance reform and real patient safety initiatives are the only solution for reducing premium costs to doctors.�

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