According to the National Conference of State Legislatures, national estimates of medical liability system costs—including settlements, legal and administrative costs, and defensive medicine—range from $55.6 billion annually to $200 billion.
In response to longstanding concerns about Pennsylvania’s legal climate, HAP has joined with the state’s leading business and medical voices to form the Pennsylvania Coalition for Civil Justice Reform (PCCJR). PCCJR’s mission is to improve the state’s overall legal liability system to help attract and retain health care providers and ensure access to health services.
COVID-19 Pandemic—Liability Protections
HAP remains committed to improving the state’s overall legal liability system to help attract and retain health care providers and ensure patients have access to high quality health care. HAP strongly supports state and federal proposals that protect health care workers and health systems from predatory litigation related to the COVID-19 pandemic and has joined dozens of organizations calling for limited and targeted protections for health care professionals and facilities against predatory litigation related to the pandemic.
Federally, HAP joined 78 organizations urging the federal delegation to support temporary and targeted COVID-19 liability protections by co-signing joint letters sent during August 2020 and again during December.
At the state level, HAP joined stakeholders and the PCCJR to push for limited liability protections for health care providers, including facilities, who comply with government guidelines during the Governor’s emergency declaration. Legislation was sent to the Governor’s desk but was vetoed. In addition, HAP continues to call on the Governor to use his executive powers to provide for these protections through an executive order.
During August 2022, the Pennsylvania Supreme Court made an abrupt public policy change by eliminating a rule that has stabilized the state’s medical liability system and protected Pennsylvanians’ health care for nearly two decades. The decision reverts to a pre-2003 legal framework that allows personal injury lawyers to move medical liability claims from the counties in which the event occurred to counties that have histories of higher payouts. This practice is called “venue shopping.”
This change, which takes effect for lawsuits filed on or after January 1, 2023, puts Pennsylvanians’ health care at risk. When venue shopping occurred prior to 2003, Pennsylvania was one of the least attractive states in which to practice medicine and it was extremely difficult for the commonwealth to attract and keep health care providers. Pennsylvania already has a clinician shortage and needs to be doing everything possible to attract, not drive away, health care professionals. Venue shopping will worsen Pennsylvania’s workforce crisis, threaten the long-term viability of hospitals, and threaten patient access to care.
A 2022 actuarial study commissioned by the state Senate Judiciary Committee forecasted the devastating effect should venue shopping return for medical liability cases, predicting alarming premium increases in some parts of the state that could result in another medical liability crisis.
HAP supports legislative efforts to reaffirm a framework that provides for fair recoveries for injured patients while protecting access to care.
During 2017, the Pennsylvania Supreme Court ruled that health care facilities and physicians could not use qualified practitioners in the informed consent process. Qualified staff no longer can assist with providing information, answering questions, or following up with patients prior to surgical procedures. The court ruling is based upon a strict interpretation of the state’s 2002 Medical Care Availability and Reduction of Error (MCare) Act, which was written at a time during which the practice of medicine was very different than it is today. HAP supports legislation which modernizes the MCARE Act to align with team-based health care.
Statute of Repose
During November 2019, in a 4-to-3 ruling, the Supreme Court of Pennsylvania held that a seven-year statute of repose for medical malpractice, was unconstitutional. The statute originally was passed as part of a 2002 law designed to improve access to health care. The majority found the statute of repose violated the right of access to the courts and had no substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums. HAP is working with other stakeholders to craft legislation which will remedy this court-created gap in the law.
Peer Review Privilege
Pennsylvania has a Peer Review Act which protects medical professionals and their employers from disclosure in lawsuits regarding frank discussions among clinicians about a colleague’s suitability to continue to treat patients. Protection of honest discussion and in depth analysis of medical incidents is necessary to ensure the highest level of patient safety and to avoid future problems. This peer review privilege has lately been eroded by the Pennsylvania Supreme Court in a series of decisions. HAP supports legislation which will strengthen the Peer Review Act so these protections remain in place to permit hospitals to provide the best care to their patients.