5/18/11 - Liability and Health Reform Update
ACTION ALERT
IMPORTANT HEARING ON FAIR SHARE ACT AT PHILA BAR ASSN TOMORROW
Senator Stuart Greenleaf, chair of the Senate Judiciary Committee, is holding a public hearing on the Fair Share Act tomorrow in decidedly NON-neutral territory - the Philadelphia Bar Association offices on Market Street.
Business leaders, doctors, lawyers who support liability reform (and there are MANY of you out there) and other who support the Fair Share Act (HB1 or SB2 - NOT Senate Bill 500) are welcome to attend this PUBLIC hearing.
Those giving testimony in support of the Fair Share Act tomorrow will include leaders from the PA Chamber of Commerce, the NFIB, the Insurance Federation and the Hospital and Health Services Association of PA.
Thursday, May 19, 2011
When: 12:00 PM
What: JUDICIARY (public hearing to receive testimony on the issue of joint and several liability including Senate Bills No. 2 and 500)
Where: Philadelphia Bar Assn.
1101 Market St.
11th Floor
Philadelphia, PA
Our friends at the Chamber and the PA Manufacturers Association, as well as our allies at Cold Spark Media, are looking for business people who would be willing to speak to the media about how passing joint and several liability reform would benefit Pennsylvania business and health care.
If you're able to attend, or are willing to speak with the media, please contact Lindsey at Cold Spark Media: lindsey@coldsparkmedia.com
Thank you!
Donna Baver Rovito
Editor, Liability and Health Reform Update
ROVSPA@aol.com
Some additional information on HB 1 and SB 2 follows:
From DefenseofMedicine.com
((Just discovered this wonderful site - but I'll be back to it often!))
Joint and Several Liability Update
http://www.defenseofmedicine.com/2011/04/joint-and-several-liability-update/
The Pennsylvania Legislature is poised to alter the joint and several liability rules in the Commonwealth but there are now multiple versions, including a watered-down proposal, vying for passage.
There are three bills before the Legislature that propose changes to joint and several liability: House Bill 1, Senate Bill 2, and Senate Bill 500. HB 1 and SB 2 do not differ significantly and constitute an attempt to reenact the “Fair Share Act” that previously passed both houses of the Pennsylvania legislature in 2002, was signed into law by then-Governor Mark Schweiker, but was subsequently declared unconstitutional by the Pennsylvania Supreme Court in DeWeese v. Cortes.
Under HB 1 and SB 2, no defendant would be required to pay more than their proportionate share of the verdict. Therefore, if one defendant is found 50% negligent and another defendant found 50% negligent, each defendant is responsible for paying only 50% of the verdict.
SB 500, introduced by Senator Stewart Greenleaf, is markedly different however. The bill would eliminate joint liability only if the plaintiff’s percentage share of negligent conduct exceeds the share of negligence attributable to the defendant. This represents significantly less of a reform than HB 1 or SB 2.
For instance, under SB 500, if a plaintiff is not found to have been negligent and two defendants are found to both be 50% responsible for the plaintiff’s injuries, the plaintiff may continue to recover the full verdict amount from either of the defendants. The plaintiff may continue to recover the entire award from one defendant regardless of the fact that the defendant was found only 50% responsible.
The only time that SB 500 would operate as a reform to the joint and several liability rules would be if the plaintiff is found to have negligently contributed to their own injuries. Therefore, for example, if a plaintiff is found 25% responsible, one defendant found 15% responsible, and another defendant found 60% responsible, the plaintiff may only recover 15% of the award from the defendant found 15% responsible.
The real world application of SB 500 is likely limited, particularly in medical professional liability cases. If health care providers seek meaningful reform, their best options continue to be HB 1 or SB 2. Unfortunately, they may be at odds with the Pennsylvania Bar Association, which may be headed toward supporting SB 500.
Read more: http://www.defenseofmedicine.com/2011/04/joint-and-several-liability-update/#ixzz1MYgd3jgx
About the author
Jon is a partner at the McQuaide Blasko law firm whose practice is specialized in litigation, complex medical professional liability defense, health care, and providing legal counsel on numerous issues associated with day-to-day hospital operations. He has successfully tried several cases to verdict as first-chair trial counsel before juries in both state and federal court. Jon has also represented clients in appellate litigation, mediation, and in connection with administrative agency investigations. Contact Jon by email.
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From The Daily Item:
May 12, 2011
Pa is one of few states with a joint liability bill
http://dailyitem.com/0100_news/x1693506665/Pa-is-one-of-few-states-with-a-joint-liability-bill
By Evamarie Socha
Thu May 12, 2011, 08:17 PM EDT
LEWISBURG — Liability reform can rein in health-care costs, and having fewer uninsured patients makes better financial sense for Pennsylvania’s hospitals, a health-care legislative expert told a gathering of Evangelical Community Hospital’s Business Partners Thursday.
Tim Ohrum, director of legislative services for the Hospital and Healthsystems Association of Pennsylvania, said that the Corbett administration and legislators are starting to understand better how these two issues affect health-care costs in the Keystone State.
In discussing medical liability reform, Ohrum said Pennsylvania is one of a few states without a joint liability bill. What this means is that regardless of how much liability a health-care provider has in a civil lawsuit, if the other parties can’t or won’t pay their share, the provider may end up covering all of it.
“The hospital is seen as having deep pockets,” Ohrum said, a position that puts it at risk for bankruptcy.
He cited the case of Tyrone Hospital, near Altoona, which covered all liability in an OB/Gyn lawsuit though only being responsible for 20 percent. The hospital was forced to file bankruptcy in September 2006 but emerged from it in August 2010.
Ohrum thanked state Rep. Fred Keller of the 85th legislative district for the House’s recent approval of a “fair-share” bill that limits liability of multiple defendants in a civil lawsuit and protects those less than 60 percent at fault from paying more than their share of damages.
Regarding the uninsured, Ohrum said it’s essential to restore Medicaid funding in Pennsylvania, which faces an increase in essential services needs at the same time it sees lower revenue, largely as a result of end of federal stimulus monies.
Figuring out “the glide path off federal stimulus money” is one big issue, Ohrum said, “how to elevate the medical assistance payments at a time when the states are short of money.”
Gov. Tom Corbett’s proposed budget, released March 8, includes a 3 percent decrease in health-care funding and cuts hospital funding, both state and federal, by $333 million. Hospitals contributed $246 million to the state budget over three years; the budget makes for them to sustain $333 million above that. Also, the budget cuts hospital payments by 7 percent, making for an even larger sacrifice on the part of hospitals.
“Folks think of welfare as someone who refuses to get a job,” Ohrum said, but the elderly, the disabled and children — all who are least able to work — are the most frequent recipients of such benefits.
“It’s grandma and grandpa; they’re not going to go out and get a job,” he said. Neither will people with disabilities or children below age 18. “This is who this safety net was built for,” he said.
Also, before the recession, about 30 percent of Pennsylvanians were receiving Medicaid. That number grew to 48 percent after the recession began, he said.
Norm Rich of Evangelical’s board of directors told the group the “Evangelical & You” program is just above $10 million. The fundraising campaign is generating support for the Surgical and Cardiovascular Expansion Project (SCEP), endowments and the Evangelical Care Fund.
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From the PA Medical Society's website:
PAMED Supports Repeal of Complete Joint and Several Liability
http://www.pamedsoc.org/HomePageNews/Joint-and-Several.html
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.
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.
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From Care for PA website - affiliated with the Hospital Assn. of PA
((This is a couple of weeks old, but is a good rundown on the Fair Share Act))
The ‘Fair Share Act’ is common sense legal reform that is in place in 40 other states and must be passed in Pennsylvania to ensure a strong health care and business environment for its residents.
Important Legal Reform Closer to Law; 'Fair Share Act' Must Now Pass Senate
http://www.careforpa.org/issues/medical-liability/important-legal-reform-closer-to-law-fair-share-act-must-now-pass-senate/
With the help of the CareforPA community who emailed state House of Representative members earlier this month, important legal reforms are one step closer to becoming law. House Bill 1 (also known as “The Fair Share Act”) was passed by the House and is now in the state Senate Judiciary Committee for consideration, along with its companion bill, Senate Bill 2.
It’s critical that House Bill 1 or Senate Bill 2 is passed by the Senate and goes to the Governor for signature in order to help address the high legal costs paid by Pennsylvania health care providers. Currently, those high legal costs increase health care costs for all Pennsylvanians, limit access to medical care for Pennsylvanians, hurt statewide job growth, and keep hospitals from finding physicians who want to work in our state. You can read more about Pennsylvania’s medical liability crisis by clicking the “Related Articles” link on the right side of this page.
Next Steps for Legal Reform
Both House Bill 1 and Senate Bill 2 are in the state Senate Judiciary Committee, which is chaired by Senator Stewart Greenleaf who favors trial lawyers and opposes both bills. Sen. Greenleaf has introduced his own bill, Senate Bill 500, as an alternative. Sen. Greenleaf’s bill, however, only would apply in very rare instances, essentially keeping the current broken legal system in place. Pennsylvania’s hospital community opposes Senate Bill 500.
Sen. Greenleaf must bring either House Bill 1 or Senate Bill 2 up for a vote in the committee, and the committee must pass the bill by a majority vote in order for the bill to move to the full Senate for consideration.
Pennsylvania’s Fair Share Act has the support of more than 40 organizations representing hospitals, medical professionals, businesses, and local governments. It’s a common sense legal reform that is in place in 40 other states and must be passed in Pennsylvania to ensure a strong health care and business environment for its residents.
You Can Help
If you have not done so already, please take a moment to email your Senate member and urge them to support House Bill 1 or Senate Bill 2. As Senate members hear from Pennsylvanians like you, they will put pressure on Sen. Greenleaf to put House Bill 1 or Senate Bill 2 up for a vote.
By using CareforPA’s email system, you can make a big difference in less than a minute. After you send your email, use the links at the bottom of this page to pass the information on to your family and friends.
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((If YOUR state senator is a member of this committee, please contact him or her IMMEDIATELY and ask him or her to support HB 1 or SB 2 - NOT Senate Bill 500. And if your state senator is NOT a member of the Judiciary Committee, please ask him or her to contact colleagues who ARE on the Judiciary Committee to support HB1 or SB2))
Members of the PA Senate JUDICIARY Committee
Officers
Greenleaf, Stewart J. , Chair
19 East Wing
(717) 787-6599
sgreenleaf@pasen.gov
Senate District 12
Bucks (part) and Montgomery (part) Counties
White, Mary Jo, Vice Chair
169 Capitol Building
(717) 787-9684
mwhite@pasen.gov
Senate District 21
Butler (part), Clarion, Erie (part),
Forest, Venango and Warren (part) Counties
Leach, Daylin , Minority Chair
184 Main Capitol
(717) 787-5544
http://www.senatorleach.com
Senate District 17
Delaware (part) and Montgomery (part) Counties
Scarnati, Joseph B., III, ex-officio
292 Capitol Building
(717) 787-7084
jscarnati@pasen.gov
Senate District 25
Cameron, Clearfield (part), Elk,
Jefferson, Mckean, Potter,
Tioga and Warren (part) Counties
Majority
Alloway, Richard L., II
187 Main Capitol
(717) 787-4651
alloway@pasen.gov
Senate District 33
Adams, Franklin and York (part) Counties
Earll, Jane M.
177 Capitol Building
(717) 787-8927
jearll@pasen.gov
Senate District 49
Erie (part) County
Gordner, John R.
351 Main Capitol
(717) 787-8928
jgordner@pasen.gov
Senate District 27
Columbia, Dauphin (part), Luzerne (part),
Montour, Northumberland and Snyder Counties
Orie, Jane Clare
362 Main Capitol
(717) 787-6538
jorie@pasen.gov
Senate District 40
Allegheny (part) and Butler (part) Counties
Piccola, Jeffrey E.
173 Capitol Building
(717) 787-6801
jpiccola@pasen.gov
Senate District 15
Dauphin (part) and York (part) Counties
Rafferty, John C., Jr.
20 East Wing
(717) 787-1398
jrafferty@pasen.gov
Senate District 44
Berks (part), Chester (part) and Montgomery (part) Counties
Minority
Boscola, Lisa M.
458 Capitol Building
(717) 787-4236
boscola@pasenate.com
Senate District 18
Lehigh (part), Monroe (part) and Northampton (part) Counties
Farnese, Jr., Lawrence M.
543 Main Capitol
(717) 787-5662
http://www.senatorfarnese.com
Senate District 1
Philadelphia (part) County
Hughes, Vincent J.
545 Capitol Building
(717) 787-7112
hughes@pasenate.com
Senate District 7
Montgomery (part) and Philadelphia (part) Counties
Stack, Michael J.
543 Main Capitol
(717) 787-9608
stack@pasenate.com
Senate District 5
Philadelphia (part) County
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