Pennsylvania governor vetoes joint and several liability bill; Florida approves it

Florida legislation eliminating joint and several liability was expected to be signed into law.

Issue: May 2006

Pennsylvania Gov. Ed Rendell recently vetoed the “Fair Share Act,” which would have held any defendant found less than 60% liable responsible only for a relative share of economic damages.

The state Senate passed the bill early last December. The Hospital and Healthsystem Association of Pennsylvania (HAP) hailed the bill shortly after its passage. “Pennsylvania’s hospitals do not understand why Rendell broke the promise he made about liability reform four years ago,” HAP President and CEO Carolyn F. Scanlan said in a HAP news release.

Scanlan called the bill a “common-sense measure that would have maintained a person’s right to collect damages while bringing fairness, balance and stability to Pennsylvania’s liability system.”

In “Medical Malpractice and Tort Reform,” a paper issued during the 2002 Pennsylvania gubernatorial campaign, Rendell promised to “limit the unjust effects of joint and several liability” and pledged support for the “Fair Share Act,” which the state’s General Assembly enacted in 2002. The original “Fair Share” law, declared unconstitutional on purely procedural grounds, was identical to the legislation Rendell vetoed, according to HAP.

Soon after Rendell vetoed the act, the Florida Legislature passed a bill to end joint and several liability for economic damages, according to published sources.

The term “joint and several liability” means that any defendant may be held responsible for an award regardless of the number of defendants involved or how the defendant contributed to an injury.

The Florida state Senate passed the bill by a 27-13 margin. The state’s House passed it 93-27, the Web site modernhealthcare.com reported.

Florida Gov. Jeb Bush vowed to sign the bill into law.

The bill’s opponents fear that with joint and several liability being eliminated, victims will be forced to pay medical costs and other expenses, the South Florida Sun-Sentinel reported.

Florida ended joint and several liability for noneconomic damages in 1986, according to modernhealthcare.com.

Senate to mull reform bill

The U.S. Senate is expected to consider a medical liability reform bill and possibly vote on it May 2. Majority Leader Bill Frist (R-Tenn.) announced plans to discuss a $750,000 cap on noneconomic damages and a $250,000 cap on per-defendant damages. Doctors for Medical Liability Reform (DMLR), which represents more than 200,000 physicians in eight medical specialties, invites physicians and patients to sign a petition on its Web site: protectpatientsnow.org.

Frist moved to hold a Senate vote on liability reform last fall, but the vote never took place. Last July, the House passed a bill that would cap punitive damages, limit contingency fees that plaintiffs’ attorneys may charge and impose a statute of limitations for filing malpractice lawsuits. Senate leaders also introduced the Health American Act of 2005 last August, which included various measures to control health care cost increases, expand health insurance coverage and improve health care access.

Wisconsin passes new cap

Wisconsin Gov. Jim Doyle signed a bill that will impose a $750,000 cap on noneconomic damage awards, the Milwaukee Journal Sentinel reported. The state’s Assembly and Senate both passed the bill and had more than the two-thirds majority needed to override a gubernatorial veto.

In July 2005, the state’s Supreme Court had struck down a $445,775 cap as unconstitutional. Last November, the Assembly passed a bill that would have reinstated a $550,000 cap on noneconomic damages for victims aged 18 years and younger, and a $450,000 cap on damages for adult victims. But Doyle vetoed that bill in December.

The Delaware State House’s Economic Development, Banking and Insurance Committee recently tabled a bill that would give obstetricians and other high-risk specialists subsidies for malpractice insurance premiums. But critics said the legislation failed to address important issues concerning tort reform, the Wilmington News-Journal reported.

The state’s Senate passed the bill last June. If it becomes law, the state would form a malpractice premium relief fund financed annually through 4% of Blue Cross/Blue Shield of Delaware’s financial reserves.

Delaware’s chapter of the American College of Obstetricians and Gynecologists endorsed the bill. But the Medical Society of Delaware voiced concern that the legislation would hinder medical liability reform, the News-Journal reported.

Officials with the Physician Insurers Association of America (PIAA) said subsidies offer no real solutions and burden taxpayers. The subsidy would provide "temporary relief" for physicians, but would not solve the problem of high premiums, said Lawrence Smarr, PIAA president.

“If anything, it puts the problem on the backs of the taxpayer,” Smarr told Orthopedics Today. “So, in the long run, I don’t think it’s any kind of real solution.”

Recent statewide malpractice news includes the following:

Florida’s malpractice insurance premiums remain high, despite at least six new insurers entering the state during the last three years, the Palm Beach Post reported. The state’s largest malpractice insurer made a record $35 million profit in 2005 and appears to be holding premiums steady in 2006. However, physicians complain that premiums are still forcing many practitioners to forego malpractice insurance. Orthopedic surgeons practicing in Palm Beach County pay about $150,000 in annual premiums, according to the Post.
Idaho’s state legislature considered a bill that would make health care workers’ “expressions of apology, condolence and sympathy,” and explanations of errors, inadmissible in court under certain circumstances, the Idaho Sentinel reported. The Idaho Medical Association wants more open physician/patient communication. The Idaho Trial Lawyers’ Association wants explanations admissible in court, according to the Sentinel.