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Tort Reform or Reform of Procedures

Written by Harry M. Roth, Esquire

In the early part of the decade Governor Ed Rendell signed into law a piece of legislature titled The Medical Care Liability and Reduction of Error Act (M-Care). The Act was unique in its approach to tackling the challenge of responding to claims that a medical malpractice crisis in Pennsylvania was causing doctors to flee the Commonwealth, it’s high malpractice premiums and unjust verdicts and, at the same time addressing the quality of medical care giving rise to suits. Rather than address reduce jury verdict exposures by capping potential recoveries, a solution that penalizes those most seriously injured in meritorious claims, the legislation focused on reducing the filing of cases that lacked merit – the so called frivolous lawsuit.

A number of procedural requirements were grafted into the procedural rules for medical malpractice claims. Lawyers filing such suits had to submit within 30 days of filing a complaint, a certificate of merit in which they verified that they had a written report from a qualified medical expert expressing his or her opinion that there was reasonable probability that the care rendered by each defendant was below the minimum standard of care and was a cause of the patient’s harm. Expert qualifications were defined in the Act as well and in order to qualify as an expert fit to offer an opinion regarding standard of care a witness, at a minimum, was required to practice in the same specialty as the defendant and, if the defendant was, be board certified in that specialty. Another significant procedural change created by the M-Care Act was the requirement that lawsuits be filed in the county in Pennsylvania where the treatment complained of occurred.

The Act had created significant economic changes in the jurisprudence of medical malpractice cases. Plaintiffs could not recover any medical or wage losses for which they had received insurance. Verdicts for future medical expenses would be broken down on an annual basis for so long as the jury concluded such would be necessary and then reduced to present value where they could be satisfied after judgment was entered by the purchase by the defendant (s) of a court approved annuity.

Finally, doctors are required within sixty days to notify the licensing board of the filing of a complaint against them so the board can determine, confidentially, whether any disciplinary action should follow.

The impact of the M-Care Act has been significant. For the 6th year in a row, the number of medical malpractice lawsuits filed in Pennsylvania has dropped. Of the 163 cases that were tried last year, 133 or 81% resulted in defense verdicts. As described in the Pennsylvania Insurance Journal, private mediation has played an increasing role in resolving these cases.

The Pennsylvania example is sound however. Without affecting the rights of those who have suffered life altering injuries through no fault of their own, the M-Care Act has, through procedural changes, has effectively reformed the litigation process of medical malpractice cases in Pennsylvania.

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