The Latest: In January 2009, HAP, the Pennsylvania Medical Society, and the Pennsylvania Podiatric Medical Association, filed suits in the Commonwealth Court to protect the funds dedicated to the Mcare Fund and the unfunded liability of the fund. The Commonwealth Court of Pennsylvania ruled in favorof the providers, stating that a plain reading of the statute required the Insurance Commissioner to take into account the Mcare Fund reserves when calculating the annual Mcare assessment because the Mcare Fund is a “pay as you go” system that does not contemplate reserves. Furthermore, the court found that the plain reading of the statute did not authorize the Mcare Fund to amass large reserves, particularly since the Legislature, in enacting the Mcare Fund, never directed how any such reserves should be used. The Court ordered the Department of Insurance to re-calculate the Mcare Fund’s 2009, 2010, and 2011 Mcare assessments. HAP is awaiting a decision by the Commonwealth of Pennsylvania on an appeal.
Background: The Medical Care Availability and Reduction of Error Fund (Mcare) was created by Act 13 of 2002. Participation in the Mcare Fund is mandatory for hospitals, nursing homes, birth centers, primary health centers, physicians, osteopathic physicians, podiatrists and nurse midwives licensed who conduct 50 percent or more of their health care business within the commonwealth. The Mcare Fund has the authority to levy an assessment on participating health care providers.
Pennsylvania, Wisconsin, and Nebraska are the only states that have mandatory state-operated medical liability access funds. The Mcare Fund is viewed to create administrative inefficiencies and increases costs. Physicians, hospitals, and insurers have argued that the Mcare Fund should be retired and the commonwealth should not be in the medical liability insurance business. Any phase-out of the Mcare Fund must be done in a manner that avoids making health care providers pay an assessment for past claims, while at the same time funding the primary layer for future claims.
Apology / Benevolent Gesture Legislation
Last Updated: 10/6/2013
The Latest: The state Senate unanimously passed Senate Bill 379,sponsored by Senator Patricia Vance (R-Cumberland), which makes any benevolent gesture made prior to the commencement of a medical liability action by a health care provider, assisted living residence, or personal care home, inadmissible as evidence of liability or an admission against interest. A benevolent gesture is any action that conveys a sense of apology, explanation, or compassion related to the discomfort, pain, suffering, injury, or death of a patient. The bill was approved by the House Judiciary Committee in June. HAP supports the legislation, and is advocating for House passage during the 2013 fall session.
Background: Pennsylvania’s physicians and hospitals face some of the highest medical liability costs in the nation. The high legal costs paid by Pennsylvania health care providers, employers, and governments inhibit job growth, increase health care costs, and limit access to medical care.
Pennsylvania needs to enact meaningful legal reforms that will inject fairness, common sense, and personal responsibility into the legal system. Medical liability reform is necessary to support patient access to health care and to help reduce health care costs.