New Medical Malpractice Law Takes Effect

John P. Gismondi
January 8, 1997

At the end of this month, a new medical malpractice bill will take effect in Pennsylvania.

This legislation, known as Act 135 of 1996, represents the most significant change in the

medical malpractice field in the past twenty (20) years. Here is a summary of the major

provisions in the Act, as well as some comments on their impact.

• Coverage Limits — Under current law, doctors and hospitals are required to purchase $200,000 of primary insurance. Additionally each doctor and hospital contributes to a common pool, the so-called CAT Fund, which provides them with an additional $1 million layer of “excess” coverage. Thus, total coverage available to any doctor or hospital is $1.2 million.

Under the new law, the total coverage on each health care provider will remain at $1.2 million, but over the next four years, there will be a gradual increase in primary limits and a corresponding decrease in the CAT Fund layer of coverage. Eventually, by the year 2001, the primary coverage limits will be $500,000 and the CAT Fund layer of coverage will be $700,000.

The impact of these changes will be to shift more money — and therefore more control over settlements — toward the primary carriers and away from the CAT Fund.

• Delay Damages and Post-Judgment Interest — The CAT Fund is specifically made liable for delay damages and post-judgment interest. This codifies existing common law case decisions.
• Advisory Board — An Advisory Board is created to oversee all aspects of CAT Fund operation. The Board will be made up of eleven (11) people, including the State Insurance Commissioner, four (4) people appointed by the state legislature, and six (6) people appointed by the Governor.
• Informed Consent — Historically, the doctrine of informed consent applied only to surgeries in Pennsylvania. Under the new law, the reach of the informed consent doctrine will be expanded to include not only surgeries, but any of the following: anesthesia administered in conjunction with a surgery; radiation and chemotherapy; blood transfusions; the insertion of any surgical device; and, the use of experimental drugs and devices. The impact of these changes will be to increase the number of injuries for which an informed consent theory of recovery may be pursued.

However, the chances of winning an informed consent case will likely go down in light of other changes in the new law, primarily on the issue of causation. Previously, the plaintiff did not need to prove causation in an informed consent case; instead, the plaintiff only had to show that he was not provided with that information which a “prudent patient” would consider to be material before deciding to undergo a surgery. Now, however, the plaintiff will have to prove that the unmentioned information would have been a substantial factor in his initial decision to undergo the procedure.

• Punitive Damages — The character of proof required to support a punitive damage claim remains the same, e.g., the plaintiff must show that the physician’s conduct was willful, wanton, or recklessly indifferent to the rights of the patient. (Gross negligence alone is not sufficient to support a punitive damage claim.)

The new law creates both a “cap” and a “floor” on the amount of punitive damages which can be awarded. On the high end, punitive damages cannot exceed twice the amount of compensatory damages, whereas on the low end, punitive damages cannot be less than $100,000, so long as the compensatory award was at least $100,000.

From a procedural standpoint, there are several changes affecting the way punitive damage cases will be handled. First, when a plaintiff files a Complaint containing a claim for punitive damages, the defendant has the right to move to strike that portion of the Complaint until the close of discovery, at which time the plaintiff can move to reinstate the claim by showing the judge that sufficient evidence to support a punitive claim has been developed in discovery. Second, only if the claim is reinstated will the plaintiff be entitled to discovery concerning the defendant’s net worth. Third, the trial of the case must be bifurcated, i.e., the punitive damage issue can be submitted to the jury only after plaintiff receives a favorable verdict on liability.

The impact of these procedure changes will be to slow down the pace of cases involving claims for punitive damages because a hearing will be necessary to re­instate the claim; discovery on financial net worth, which would normally be obtained during the regular discovery phase, will only be permissible once the claim has been reinstated at the close of regular discovery; and trial of the case will be bifurcated.

• Certification of Pleadings — A plaintiff attorney’s signature on a Complaint constitutes certification that the attorney has a “report” from a qualified expert which indicates that the health care provided was negligent. Such certification is temporarily unnecessary in certain circumstances, e.g., where the patient first contacts the attorney on the eve of the statute of limitations; where the doctor or hospital has failed to produce necessary records; where no opinion can be rendered in the absence of further discovery; where the case does not require expert testimony; or where the court determines that the requirement should be waived. In all of these circumstances, however, the plaintiff has to provide the necessary certification once a certain amount of time has passed or the condition which provided the temporary reprieve has been “cured.” Interestingly, the statute does not specify whether the “report” which the plaintiff must obtain from an expert is to be in writing or may be oral in form.

If a defendant wants to confirm that a plaintiff’s attorney has received a required report, they can file a motion with the court and seek a judge’s verification that the necessary report has been obtained. If the plaintiff’s counsel is found to have violated the certification requirement, the defense counsel may report the attorney to the Disciplinary Board.

Obviously, this certification provision is designed to “weed out” frivolous claims, and it should be successful to some extent in that regard.

• Time Limits on Discovery — Discovery is to be completed within two (2) years from the date that a claim is commenced, although the court may extend discovery for an additional 180 days upon good cause shown.

Like certain other mandates in the new law, this item may be perceived by trial courts as an unwarranted invasion of their right to regulate their own dockets. For that reason, a provision such as this may be ripe for constitutional challenge, the argument being that only the Supreme Court, not the state legislature, has the right to impose mandatory discovery limits on court litigation. In any event, it is clear that the legislature is “sending a message,” that it wants to speed up the pace of medical malpractice litigation.

• Settlement Conferences and Pre-Trial Conferences — The new law makes mandatory the holding of a settlement conference ninety (90) days after the completion of discovery, and it also makes mandatory the scheduling of a pre-trial conference at least thirty (30) days prior to trial.

This again is a provision which may be regarded by the trial courts as an unwarranted invasion of their right to establish court schedules. As a practical matter, most courts already hold settlement conferences and pre-trial conferences, but they may not do so within the time frame set out in this new law.

• Affidavit of Non-Involvement — A doctor who believes that he/she has been the victim of “mistaken identity,” — joined as a defendant under the mistaken belief that they treated the pa
  tient — may now file an Affidavit of Non-Involvement in order to be dismissed from the case. If the plaintiff disagrees with that assertion, they may file a counter-affidavit, and the matter will be resolved by the court.

If a defendant is dismissed from the case on the basis of the Affidavit of Non-Involvement, but it is subsequently discovered that the physician was involved in the care of the patient, the statute of limitations is tolled during that interim period.

• Mandatory Reporting of Claims — Currently, all settlement or verdict payments in medical malpractice cases must be reported by the insurance carriers to a data bank maintained by the federal government. Under the new law, an additional reporting will also have to be made to the state Licensing Board, which in turn shall conduct any necessary investigation of the circumstances surrounding the claim.