Tuesday, April 19, 2011

4/19/11 - Liability&HealthNews ALERT - Fair Share Act in Judiciary Committee - Need help NOW

4/19/11 - Liability&Health News ALERT
Fair Share Act in Senate Judiciary Committee:
Need help NOW!

by Donna Baver Rovito

Editor, Liability and Health News Update

((Donna's in-article comments in double parentheses and blue italics. Please scroll to the end for more information, disclaimer, etc.))


((This alert courtesy of a fellow supporter of medical liability reform in the Lehigh Valley, Mary Barket. Thanks for the heads-up, Mary!))


Senate Bill 2 (the Fair Share Act) is now going through the PA Senate Judiciary Committee after passing in the House. This is important tort reform (see below).

We need to let Sen. Lisa Boscola, a member of the Judiciary Committee, know that we need her vote! Call her today at 717-787-4236 or 610-868-8667 and let her know that we need this bill to come to the PA Senate floor!

((If you live in Lisa Boscola's district, please contact her - if not, see the Commentary below to see if your Senator is a member of the Judiciary Committee....DBR))

Nothing would provide a greater “stimulus” to Pennsylvania’s lagging economy than a fair, predictable and even-handed legal system. Current Pennsylvania law allows a defendant who is just marginally responsible for injury or harm to be made to pay 100 percent of the damages.

We need meaningful reform – the Fair Share Act – to limit awards against defendants who are judged to have been only partially liable in a lawsuit. The Fair Share Act would create a proportional liability system in which defendants found to be less than 60 percent responsible for an injury or damage to pay only their proportionate share of the award.



In fact, we need physicians, members of medical families, and other supporters of liability reform and quality health care throughout PA to make calls to their Senators who sit on the Judiciary Committee.

It might seem that the Republican majority will support this measure, which was passed twice by the PA legislature, but given the strong ties of some members of the Judiciary committee with the trial bar, it's something we DEFINITELY shouldn't take for granted.

If you live in the district of ANY of the following members of the Judiciary Committee, please contact their offices ASAP and tell them YOU support the Fair Share Act and that you'd appreciate his or her vote to move it out of Committee so the full Senate can vote on it and express the will of the people in PA on this issue.

At this point, with the vote taking place shortly, unless you KNOW your Senator well enough that he or she would open your email right away rather than waiting for it to be processed through his or her office, it would be best to CALL. We've included phone numbers for your convenience.

Your message should be short and sweet - "Please ask Sen. ___________ to vote YES on moving the Fair Share Act out of the Judiciary Committee for a full Senate vote."

If you don't know who your state senator is, go here to find out: http://www.pasen.gov/cfdocs/legis/home/findyourlegislator/#zip

Doctors - please write letters to your local newspapers about the importance of this bill to Pennsylvania medicine! If you'd like help with that, please email me!

Thank you!



Members of the PA Senate JUDICIARY Committee


Greenleaf, Stewart J. , Chair
(717) 787-6599

White, Mary Jo, Vice Chair
(717) 787-9684

Leach, Daylin , Minority Chair
(717) 787-5544

Scarnati, Joseph B., III, ex-officio
(717) 787-7084


Alloway, Richard L., II
(717) 787-4651

Earll, Jane M.
(717) 787-8927

Gordner, John R.
(717) 787-8928

Orie, Jane Clare
(717) 787-6538

Piccola, Jeffrey E.
(717) 787-6801

Rafferty, John C., Jr.
(717) 787-1398


Boscola, Lisa M.
(717) 787-4236

Farnese, Jr., Lawrence M.
(717) 787-5662

Hughes, Vincent J.
(717) 787-7112

Stack, Michael J.
(717) 787-9608


From the PA Medical Society Website
PAMED Supports Repeal of Complete Joint and Several Liability

House Bill 1 and Senate Bill 2 would modify Pennsylvania’s joint and several liability law. By a vote of 112-88, the House passed HB 1 on April 11, 2011, sending the bill to the Senate for consideration.

A hearing was also held in the Senate Judiciary Committee on April 11 on SB 2, a similar bill sponsored by Sen. Jake Corman (R-Centre).

Pennsylvania is one of only a handful of states that has complete joint and several liability. Under the current law, if one defendant is without assets or has insufficient funds to pay their share, the other defendant(s) can be held responsible for 100 percent of the jury’s award.

If either HB 1 or SB 2 is passed, each responsible defendant would only have to pay their share as long as the jury finds them less than 60 percent at fault. If a defendant is found more than 60 percent at fault, they can be made to pay 100 percent of the damages, if the other defendant(s) are without sufficient funds.

If either HB 1 or SB 2 is passed, each responsible defendant would only have to pay their share as long as the jury finds them less than 60 percent at fault. If a defendant is found more than 60 percent at fault, they can be made to pay 100 percent of the damages, if the other defendant(s) are without sufficient funds.

Under HB 1, some exceptions for full joint and several liability would still exist, including:

Intentional misrepresentation
Hazardous tort(s)
Hazardous substances released or threatened to be released
Liquor code violations

This is not the first time around for this legislation. In 2002, a very similar bill was signed into law, but was thrown out by the state Supreme Court on a procedural technicality. In 2006, Gov. Ed Rendell vetoed yet another bill after previously indicating he would sign it if it passed.

PAMED has been a long-time advocate for medical liability reforms, and has been successful in getting a number of reforms passed in Pennsylvania, including Act 13 of 2002. Currently, PAMED also supports a bill to allow physician apologies (HB 495) and a bill to strengthen the certificate of merit requirements.


From the Philadelphia Inquirer
Posted on Tue, Apr. 19, 2011
Pennsylvania trial lawyers, business groups square off over lawsuit reform
By Chris Mondics Inquirer Staff Writer

Trial lawyer Gerald McHugh Jr. likes to explain the battle over lawsuit reform now playing out in Harrisburg by using the story of a childhood rock-throwing incident that ended with his neighbor's smashed window.
The woman who owned the house knew McHugh's parents and called to complain. At dinner that evening in the McHugh family's West Philadelphia home, his parents read him the riot act: He would pay for the window, even though he had not thrown the rock that broke it. He and his friends could sort out who actually was responsible and how costs might be shared.

"My parents resolved that case quickly and surely," McHugh said. "I had participated, it was wrong, and therefore I was paying for a new window."

((Right....we should base all legal precedent on little boys breaking windows and one incident of parental responsibility. Does Atty. McHugh think the state of PA should be everyone's daddy?))

McHugh, a lawyer with the Philadelphia trial and appellate firm of Raynes McCarty, said the anecdote showed in the simplest of terms why the Pennsylvania Senate should vote down a proposal that would end the long-standing practice of requiring some defendants to pay full civil-damages awards, even though they might have minimal responsibility.

McHugh has become a leading spokesman for Pennsylvania trial lawyers, who believe the changes would serve businesses, physicians, hospitals, and other institutions at the expense of aggrieved customers.

This so-called doctrine of "joint-and-several liability" traditionally has undergirded civil litigation in state courts throughout the country. It has been defended by trial lawyers and other proponents who say it improves the odds for accident victims to gain fair compensation.

((It has also been repealed in all but a handful of states, including PA. As usual, PA is lagging behind....))

If one defendant does not have enough money or is judgment proof, it stands to reason that an accident victim should seek compensation from another defendant, even though that defendant may have only minimal responsibility, trial lawyers contend. ((Plus, they want to make sure their 40% contingent fees are based on the HIGHEST possible amount of money....ooops, did I say that out loud?))

McHugh's personal story of the childhood rock-throwing incident sounds folksy, but it rings hollow to businesses, physicians, and many health-care institutions that say the current legal doctrine is a green light for trial lawyers and plaintiffs to seek out the deepest pockets.

The businesses have been pushing legislation, passed by the state House of Representatives on April 11, that would end the practice for any defendant found to have less than 60 percent responsibility. The bill, which has been praised by Gov. Corbett, a Republican, now is in the Senate, which is expected to deal with the issue before lawmakers leave for summer recess.

"The long-standing legal rule of 'joint and several' has been grossly distorted by greed and, in many cases, has become nothing more than a search by personal-injury lawyers for defendants whose only real reason for being named in a lawsuit is their ability to pay," said Gene Barr, vice president of the Pennsylvania Chamber of Business and Industry." ((Mr. Barr is absolutely correct - this is why every doctor in the hospital the day an incident occurs is likely to be named in a lawsuit whether they had anything to do with it or not.))

Under the bill passed by the House, sponsored by State Rep. Curt Schroder (R., Chester), a defendant who is less than 60 percent responsible would have to pay only a proportional share of a damage award. Exceptions include cases in which the defendant intended to cause harm, engaged in intentional misrepresentation, or engaged in activity that resulted in the release of hazardous substances.

While Corbett earlier this week praised the House for passing the bill, called the Fair Share Act, it faces stiff opposition from the state's politically powerful trial lawyers and many Democrats who see the measure as a favor to big businesses, physicians, and hospitals at the expense of accident victims. ((And not all of that opposition will be from Democrats. In the case of trial lawyers, it often seems that profession trumps political party.))

"The effect, if it becomes law, is that injured victims will not be able to recover the full damages awarded to them in a court of law if they are victims of sexual assault, rogue judges, greedy gas drillers who damage the environment, and other wrongdoers," said Bill Patton, spokesman for Rep. Frank Dermody (D., Allegheny), the House Democratic leader.

But with both chambers of the legislature and the governor's office controlled by Republicans, who traditionally favor lawsuit restrictions, opponents of the bill face difficult odds. According to legislative sources, one approach they are considering is suggesting some modified version of "joint-and-several" liability, where defendants with the greatest ability to pay would still face paying a disproportionate amount, but not so much as before.

The battle playing out in Harrisburg is a mirror image of legislative confrontations and judicial elections that have been fought over lawsuit reform nationwide. Business groups have been aggressive in supporting judicial candidates who take a more restrictive approach to litigation, and have pushed bills in state capitals making it harder to sue. Dozens of states have eliminated joint-and-several liability and instituted other curbs on lawsuits.

In Pennsylvania, and nationally, business groups say excessive litigation costs are a drag on the economy, diverting precious resources from business development and job creation.

The Pennsylvania Chamber of Business and Industry points to a 2008 study by consultant Towers Perrin that concludes the U.S. tort system cost $252 billion in 2007, or $835 per person.

The study's authors qualified their work, noting they had made no effort to quantify potential benefits from lawsuits, such as the added incentive for manufacturers to make safer products rather than confront litigation.

Business and their lawyers do not see it that way, of course. Mitch Goldman, a lawyer at Duane Morris L.L.P. who specializes in health care, said a hospital client of his faces potential ruin because of the joint-and-several rule.

The hospital, which he declined to identify, is embroiled in litigation over a medical-malpractice case - in which, he said, it had only minimal involvement. But, he said, if the hospital went to trial and lost, it would be stuck with a huge bill. As a result, it probably will settle.

"The hospital in almost every one of these cases will be the deepest pocket," he said.


This LIABILITY & HEALTH NEWS UPDATE "newsletter" is a free service which I provide, as a volunteer, to help supply medical liability reform and health care reform news and information, legislative updates, and political insight to physicians, patients, liability reform and quality health care advocates. NO ONE pays me to do this.

I am not employed by any physician or health care reform advocacy or liability reform organization, political party or candidate, although I volunteer for several. I am a quality health care, physician, and patient advocate, breast cancer survivor, physician's spouse, journalist, political noisemaker, mom, and freelance writer. I am not nor will I ever claim to be unbiased (I am....biased, I mean), unlike many in the mainstream media.

Most information in this newsletter is copied and pasted from other sources, and will always be identified with links. Opinions and clarifications are my own, and do not reflect the official position of any physician or patient advocacy organization, tort reform, or health care reform group unless stated as such. My opinions are placed in double parentheses (("my opinion")), italicized and appear in blue.

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Donna Baver Rovito, Editor, Liability and Health News Update




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