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Don't let side issues derail Pennsy malpractice law fix

March 11, 2004

This week a divided Pennsylvania Senate moved forward with medical malpractice legislation, but members still aren't sure whether the cap on "pain and suffering" awards should be extended to all liability lawsuits.

Argue that question in the next session, we say, and concentrate on making this the best bill possible. That should include tying any cap on non-economic damages to limits on increases in malpractice insurance premiums.

Physicians' groups in the Keystone State have cited soaring insurance costs fueled by large jury awards as the cause of soaring insurance rates. Some have moved their practices to other states where rates are lower and more stable.

Opponents contend that insurance reform and restrictions on when a malpractice suit could be filed would be a better solution than a pain-and-suffering cap.

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It's important that something come out of this year's session, because many believe it will require an amendment to the state constitution.

According to an Associated Press report, the constitutional provision in question is 130 years old. More than a century ago, lawmakers repealed a section of the constitution that limited the railroads' liability in the event of an accident.

That means that the proposal could take several years to enact, followed by legislation to put specific amounts into law.

What seems to be missing here is some legislative recognition that in return for the cap physicians seek, the insurance companies should be willing to give something up as well.

If the cap is to be enacted, then why not also enact a rate-setting mechanism that would require insurers to justify increases in advance.

Such a system worked for the utility companies for years, ensuring a stable supply of power. Ensuring public access to medical care is no less important.

As to the question of whether caps should apply to all civil lawsuits, arguing that t the same time malpractice legislation is on the table would be a mistake.

Some jury awards in non-malpractice cases are outrageous, to be sure, but the possibility that Pennsylvania physicians may be chased out of state by high insurance rates is the problem to focus on right now.

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