The Real Med Mal Crisis

There is indeed a medical malpractice crisis in Pennsylvania, but the crisis is one faced by our clients, not the doctors. Make no mistake about it, the rights of all patients are under siege in Harrisburg like never before, and we as their representatives have got to fight back!

If you are not already aware of what I am talking about, here is the story. The hospitals and doctors are engaged in a vigorous campaign to drastically change medical malpractice law in Pennsylvania. According to them, the recent increases in malpractice premiums are driving doctors out of business, and the only “cure” is to reduce the size and number of compensation payments, i.e., jury awards and settlements made to plaintiffs. Their proposals run the gambit from substantive changes such as caps on damages to no-fault funds for brain damaged baby cases, and they also include critical procedural changes including the elimination of joint and several liability, restrictions on expert testimony, mandatory arbitration of certain claims, etc.

Now here is the really bad news. According to our legislative people – those folks who have their ears and feet to the ground in Harrisburg on a day-to-day basis – the doctors and hospitals are energized, mobilized, and politicized like never before. In the past, these groups have been plagued by lack of direction, poor organization, internal bickering, and general lack of political savvy. Not so this time! The medical people are focused, well-funded, and they have hired experienced lobbyists “to carry their water” and open doors. Full-page newspaper and radio ads warning of a physician exodus if the medical malpractice liability system is radically reformed have repeatedly appeared. The grass-roots campaign has also included several mass gatherings in the halls of the state capitol with hundreds of white-coated physicians marching into representatives offices to state their case in face-to-face fashion. To put things bluntly,folks, the legislators are getting “heat” of unprecedented levels on this issue, and it is creating the most serious challenge that patients have faced in Pennsylvania at any time since the erosion of charitable immunity gave birth to the modern era of medical malpractice litigation.

In the face of this epic campaign, we have got to respond in strong and clear terms. The leadership of our organization has put together a multi-pronged program to repel these “reform” efforts. The game plan includes, among other things, daily or weekly trips to Harrisburg to speak to legislators; regular authorship of position papers and editorial pieces; appearances at editorial boards; and offering testimony at various hearings being held around the state on the proposed reform measures.

The message that we are carrying forth is: To the extent the doctors and hospitals are facing a financial crunch, it is not because of the patients or the legal system, it is because of the following factors:

• Drastic reductions in insurance and government reimbursement for medical services.
• The lack of “experience” rating of physicians.
• Price gouging and inappropriate premium rating by insurance companies.
• The PIC/PIE liquidations.
• The CAT Fund and the primary carriers’ refusal to settle claims when opportunities to do so exist.

Our message also emphasizes that there are a huge number of medical mistakes which occur every year in this country. (According to a recent government study, some 90,000 deaths per year, the third leading cause of death in the United States, are related to medical errors.) The response to that problem should be to improve the quality of medical care, not to punish the victims thereof by reducing compensation. We are proposing legislation which would promote patient safety and also give patients greater access to a doctor’s claim history.

We have a good message, and we have a good strategy, but we need more than that to ultimately succeed in this fight. We need the help of all trial lawyers who regularly represent the victims of medical malpractice. What specifically can you do? First, we need you to contact your local legislators in writing, or preferably in person, and make that heartfelt plea as to why the doctors’ and hospitals’ problems should not be “solved” at the expense of their patients. Second, as in any campaign, your financial support is needed. It costs money to wage any political battle, particularly one as intense and far-reaching as this one. Thus, if you have not already done so already, every person who is a member of this Section should pick up their checkbook after reading this newsletter and send a contribution earmarked for the medical malpractice campaign to the general offices of PaTLA in Philadelphia and payable to “PaTLA.”

Everyone’s help is needed, and it is needed now. You may not get a second chance.