Healthcare Law Briefs

Meeting the Challenge of Health Law

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	State Bar Association Malpractice Task Force

Healthcare Law Briefs

September 21, 2004

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STATE BAR ASSOCIATION

MALPRACTICE TASK FORCE

Michael A. Cassidy, Esq.

I do not need to alert you to the malpractice crisis in Pennsylvania. I am honored to once again be appointed to the Malpractice Reform Taskforce of the Pennsylvania Bar Association. Last year, the Taskforce presented recommendations to the Bar Association which the leadership of the Bar felt were too limited, so the Taskforce has once again been charged with the responsibility of identifying problems in the "malpractice system" and recommending solutions.

I am seeking your input regarding this fundamental problem in the Commonwealth of Pennsylvania. This Newsletter will identify some of the issues.

Although everybody concedes that improving healthcare quality is a paramount concern, that issue is better addressed by the medical community. However, studies have shown that patients are compensated for medical errors in only a small fraction of the actual occurrences, less than 5% in some studies. The Taskforce would like to improve access and compensation for patients who have suffered from medical errors without increasing the complexity or expense of the court system. Some considerations involve either establishing arbitration style dispute resolution processes or providing a "worker's compensation style" procedure. Of course, one of the problems associated with a worker's compensation style program is that it is a no-fault program, i.e. it provides compensation to injured parties without distinguishing between whether the injury was caused by actual malpractice or medical error or simply an unavoidable adverse result. Implementing a system such as this would actually increase the costs to the system for actual payments to patients, but hopefully, would decrease the administrative costs and the adversarial consequences. Of course, any resolution along these lines would also impact reporting of malpractice payments, which is a separate issue addressed below.
The impact of reported malpractice settlements on physician's insurability and insurance premiums is disproportionately negative. Credentialing organizations and insurance companies already overreact to reported payments and settlements. The incentive to defend cases at all costs to avoid reporting is cleaning up the administrative costs. I believe we need to develop a system which will distinguish between payments to compensate injured parties in a no-fault system from those situations in which there is actual malpractice, and to negate the impact of true nuisance value settlements. This would involve dialogue with both the state medical board as well as engagement of the National Practitioners Data Bank.
Insurers also overreact to reported settlements, relying too heavily on the number of settlements without analysis of the actual cause and severity of the issue. Pennsylvania needs to develop a system in which physicians will not be excluded from insurance coverage without good cause. If this could not be attained with the cooperation of the commercial insurers, perhaps the Pennsylvania JUA can be redesigned so that insurance at affordable rates can be obtained by physicians who have been unfairly excluded.
Almost all discussions of the malpractice problem conclude that a very small minority of healthcare practitioners are responsible for a disproportionately large number of malpractice occurrences. Everybody would benefit from a system that allows the medical profession to better police itself. The law must provide better protection and immunity to physicians to accept the challenge and take on the responsibility of effective peer review.
The bifurcated insurance system in Pennsylvania makes it more difficult and more expensive rather than less difficult and less expensive to defend and resolve malpractice cases.
Finally, physicians need effective protection from frivolous litigation. The ability to seek vindication and compensation from the adverse professional and financial consequences of frivolous litigation must be expanded and effectively utilized.

I would appreciate your views and comments on these issues, and your thoughts on others as well. You can contact me at mcassidy@tuckerlaw.com. These thoughts are mine, and not those of the Task Force.

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