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Pennsylvania Senate bill would eliminate joint and several liability
Hospital and Healthsystem Association of Pennsylvania praises the bill as a ‘common sense’ measure to ‘balance’ damage awards.
The Pennsylvania state Senate passed a tort reform bill in early December that would eliminate joint and several liability for any defendant found to be less than 60% liable for causing an injury, the Hospital and Healthsystem Association of Pennsylvania (HAP) announced.
HAP praised Senate Bill 435 as a “common sense” measure that would maintain the right right to collect damages while bringing fairness, balance and stability to Pennsylvania’s liability insurance system.”
Two Pennsylvania physicians — Richard Schmidt, MD, head of the PA Orthopaedic Society Legislative Affairs Committee, and hand surgeon Lee Osterman, MD, member of the Orthopedics Today editorial board — gave the bill good reviews.
Osterman quoted Schmidt calling the bill a “stone in the bridge to improve the fairness of the legal tort system in Pennsylvania.”
“In some ways it helps the doctors but in some ways it's not as positive for the doctors,” Osterman said. “If you’re the physician involved, you’re more exposed because the hospital fades away, the ancillary names fade away. So, in some senses you might potentially be more vulnerable. On the other hand, it really does kind of say, ‘Just because you did something that was inappropriate at the hospital, the hospital shouldn’t be negligent because it happened on their premises.’ But overall, because it lowers the potential pie that a malpractice lawyer could get, it lessens the likelihood of suits and makes them less attractive.”
Stuart L. Weinstein, MD, president of the American Academy of Orthopaedic Surgeons (AAOS) and chairman of Doctors for Medical Liability Reform (DMLR), said the bill does not obviate the need for federal medical liability reform.
“This is certainly a step in the right direction but well short of the ideal solution to the issue,” Weinstein said. “Medical liability reform needs a comprehensive solution, and unless the Senate addresses the issue, these piecemeal attempts to address the issue will continue.”
One National Conference of State Legislatures (NCSL) official opposed any federal “pre-emption” of state tort laws, including any federal counterpart to the PA bill that may emerge.
“No, we would not support a federal bill like this because its impact would be to preempt state laws that may be different,” said NCSL committee director Susan Frederick. “We would oppose any federal legislation that would preempt state tort law. We don’t think the Senate votes are there to pass federal medical malpractice reform. Therefore, we don’t anticipate any early action in the Senate on bills of this nature.”
The U.S. House of Representatives passed a medical liability reform bill last July. Senate leaders introduced legislation last August.
Medical error disclosure study
About one-third of parents who participated in a recent survey said they would be less likely to take legal action if the physician disclosed an error related to their children's care, according to the study, released in the journal Pediatrics in December. (Pediatrics is the American Academy of Pediatrics’ official journal.)
No data had existed on parents’ preferences for disclosure, reporting and legal action in the event that errors in their children’s medical care were disclosed, said authors Cherri Hobgood, MD; Joshua H. Tamayo-Sarver, MD, PhD; Andrew Elms, MSII; and Bryan Weiner, PhD.
Parents presenting with children in a hospital emergency room were asked to respond to a survey that portrayed four medical error scenarios. They were asked to categorize the errors, express preferences for disclosure and reporting and report on how they expected to respond with and without disclosure.
Research assistants approached 661 parents, of whom 499 (75%) participated in the survey. The parents defined 54% of the error scenarios as severe. Ninety-nine percent of the parents wanted disclosure, 39% wanted the error reported to a disciplinary body and 36% were less likely to take legal action if the physician disclosed the error.
“Regardless of severity, parents want to be informed of error,” the authors said. “Educational interventions to improve error disclosure should emphasize the uniformity of parental preferences for disclosure, reporting and the decreased likelihood of legal action when errors are disclosed than if discovered through other means.”
Claim reports in Oregon
Kaiser-Permanente Northwest, a nonprofit health maintenance organization, and Oregon Health and Science University agreed to give state regulators information about past malpractice lawsuits against their physicians, The Oregonian has reported.
Both Oregon health care players reportedly did not report malpractice claims for more than 10 years. Their failure to report the claims spurred the Oregon Medical Association and state Board of Medical Examiners to call for a law clarifying malpractice requirements that apply to every licensed physician in the state.
DMLR Video
DMLR, the largest physicians’ group advocating federal medical liability reform, has released a video “mini-documentary” on the crisis. The organization is sending the video to physicians, the media and concerned citizens. The documentary shows problems patients face when high malpractice insurance costs force physicians to move their practices or quit practicing medicine.
Go to www.protectpatientsnow.org for more details or to watch the video online.
For more information:
- Hobgood C, Tamayo-Sarver, JH, Elms A, et al. Parental preferences for error disclosure, reporting, and legal action after medical error in the care of their children. Pediatrics. 2005;116:1276-1286.