Back on December 31, then-Governor-elect Rendell temporarily averted a projected medical malpractice meltdown in Pa. by calling for the elimination of 2003 MCARE premiums for high-risk specialists and a 50 percent reduction for all other physicians. Rendell’s proposal modified the recommendations of his task force, which was created in November. The task force then turned its attention to formulating long-term solutions to the problem. Three months later, with little progress on the passage of the short-term proposal in the Pa. General Assembly and the release of long-term recommendations not including caps on malpractice awards, physicians’ focus had already shifted away from the Rendell task force to other, more aggressive means of remedying the situation.

Focus and unity have rarely, if ever, been achieved by Pa. physicians. But this time, physicians bridged the divides of specialty, region and temperment as medical organizations worked out the mechanics of a protest that would "share" the malpractice crisis with patients by delaying non-essential care. As of press time, the protest was scheduled to begin near the end of April.

Some physicians are even advocating scrapping the tort system altogether as a means to adjudicate medical malpractice. The Luzerne County Medical Society sponsored a conference on April 9 to look at alternatives to the current tort system.

The task force, a source of hope for some just months ago, became a source of frustration and disappointment by the end of March, galvanizing physicians’ resolve to take drastic action.

Broad Strokes

Gov. Rendell’s 30-member Medical Malpractice Task Force’s report made headlines more for what it didn’t do, than for what it did. It approached the malpractice crisis in three key areas: patient safety, the private insurance market and tort reform/dispute resolution.

Among the more concrete actions it recommended were:

• The Commonwealth should set up and fund a limited number of test sites to evaluate the efficacy of computerized dispensing of medications.

• Accelerate, if possible, the phase-out and elimination of the MCARE Fund.

• Require the MCARE Fund to participate in mediation when the parties to the litigation agree to mediate a claim.

• Give qualified immunity to trauma centers.

Most notably, the task force only "recommended for further study" key issues at the heart of the debate: limiting non-economic damages, creation of a medical liability court and limiting attorneys’ contingency fees.

"There is absolutely nothing new in the task force report. It was a monumental waste of time," said Sen. Jeffrey Piccola, R-Dauphin County.

"I believe it was done to delay things and it succeeded in accomplishing that delay," he added.

James Tayoun M.D, chairman of surgery at St. Agnes Medical Center in South Philadelphia, said the task force members often received messages from Harrisburg about how Gov. Rendell opposes caps on non-economic damages. And when the body was nearing a vote on whether to recommend caps, the governor sent a letter saying that he wanted no votes on issues unless there was a consensus.

Tayoun and other critics have said it was a blatant bid by the governor to ensure that the task force did not come out in favor of capping non-economic damages.

"You’re hearing it right from one of the ‘handcuffed,’ - me. I know there was a majority on the task force for caps," Tayoun said.

Still Important Work

Judge Abraham Gafni, professor at Villanova University School of Law and the task force’s chair, defended the task force’s methods and final report.

"You have to look at the practicalities: we were not a representative task force. ... We are not elected legislators and we were not representative of everyone in the state. A vote (on controversial issues) would have only reflected each group’s constituency position on things like caps," Gafni said.

The task force chairman also said it would have been impossible to produce final solutions to the problem, considering the short time the task force was given and its lack of staff to help.

"This was done over a period of two months. It’s just too fast really. We had January and February to do as much as we could before getting back together again" to draft the final report during March, Gafni said.

"We could only highlight and list for those people who are the decision makers on where to go from here and what decisions to make from here. I don’t think it’s fair to ask any group with virtually no staff to come up with a comprehensive well-documented final solution" to the growing crisis, he added.

A spokesman for the Rendell administration disputed critics’ assertions that the task force was a political ploy to buy time.

"Certainly this governor is working very hard on the (medical malpractice issue) and taking it very seriously," said Richard McGarvey, a health department spokesman who was handling queries on medical malpractice.

"In the very near future, we will be announcing some long-term goals for dealing with the medical malpractice issues, some of which will be based on the task force recommendations. The task force served a very important purpose," McGarvey said.

Fitting the Cap

At center stage on many physicians’ political agendas is gaining passage of a $250,000 cap on non-economic damages.

But passage is a huge political challenge because it would require an amendment to the state constitution.

"Caps are a big piece of the answer to the problem," said Piccola.

Tayoun agreed, saying that non-economic damage caps, coupled with other measures such as limiting lawyers’ contingency fees, would help bring down premiums over time.

Edward Dench M.D. added that damage caps are important in and of themselves because they serve as guideline for all other settlements.

Dench, a State College, Pa. anethesiologist and president of the Pennsylvania Medical Society, added that the task force report annoyed him because it didn’t use existing information from task forces in other states, such as Florida, and academic studies on the positive impact of damage caps.

"I just have the feeling that we avoided using data that was available because the governor didn’t want it used," he said.

Sen. Jake Corman, R-Center County, said Act 13, passed last March, includes a number of positive measures "but unfortunately when you’re dealing with tort reform, it takes a lot of time to work its way through the system."

"The one thing we haven’t done is deal with the issue of caps on non-economic damages. It’s not the only answer to the problem, but it’s something that would bring the most stability and predictability to the market," Corman said.

Corman is the primary sponsor of Senate Bill 50, which would seek a constitutional amendment to allow caps on non-economic damages. Passage of such an amendment requires that it be approved by two successive legislatures and a public referendum - a process that would put the question on the statewide ballot in November 2005 at the earliest.

"We don’t have the votes for it yet. But we’re working on it and have had a number of meetings to determine how to get to the magic 26" of the 50-member state Senate, said Piccola, a bill co-sponsor.

He and Corman also voiced their disapproval of attempts to provide short-term subsidies to physicians to help them pay their MCARE Fund malpractice premiums.

"There are many of us in the legislature who refuse to consider that approach because it only postpones the ultimate day of reckoning," Piccola said.

Mark Phenicie, legislative counsel for the Pennsylvania Trial Lawyers Association, said there is too much emphasis put on the perceived value of non-economic caps.

For starters, he said, the $250,000 cap mentioned in the current debate is an old figure used in some state laws 30 years ago. In today’s dollars, $250,000 is worth considerably less.

Phenicie added that he believes the Pennsylvania Medical Society as well as other medical societies across the country have misled their members into thinking there will be immediate premium relief if caps are passed.

"There’s nothing immediate in caps," Phenicie said.

Interestingly, however, a number of stakeholders in the debate argue that caps would help win back malpractice insurers who previously stopped writing policies in Pennsylvania, due to economic losses. Bringing more insurers into the market, the argument goes, would increase competition and help lower premiums.

The Rendell task force interviewed a "representative sample" of the 25 insurers that wrote the biggest amount of direct premiums in the state in 2001. The task force asked the insurers why they had withdrawn from Pennsylvania or had decreased their underwriting activities - and what changes, if any, would make Pennsylvania a better place for them to do business.

All of the insurers interviewed said caps on non-economic damages would be the primary change of most significance. Other responses included caps on attorney’s fees and caps on economic damages as well.

Other Demands

Physicians have other demands besides capping non-economic damages. Politically Active Physicians Association, or PAPA, for example, said it is demanding that legislation be introduced to cap attorneys’ contingency fees.

The group is also seeking "complete relief from the MCARE Fund for all doctors," said Anthony Coletta M.D., a general surgeon based at Bryn Mawr Hospital and PAPA captain for Montgomery County. In addition, Coletta said PAPA is pushing for a declaration of an emergency that would allow for constitutional amendments to be passed by only one session of the General Assembly before moving to a public referendum.

Coletta said he doesn’t worry about the political feasibility of such a demand because "we’re not going to play politics like the old boys play in this state."

"We have a governor with no legs," he said, referring to the Democratic governor and two Republican-controlled state chambers.

"We met with (House Majority Leader) John Perzel in the House and he said the Republican caucus is solidly behind non-economic caps. None of us think that’s the only solution, but any reform without it is meaningless," Coletta said.

Exiting the Courtroom

But there are a number of other stakeholders and medical experts who contend that caps will have little lasting impact on the problem.

Dan Kopen, M.D., a general surgeon in Wilkes Barre, Pa. and president of the Luzerne County Medical Society said "tort is the wrong legal remedy for compensating patients and for decreasing errors."

"Until people understand that, all these things are going to be futile," he said.

Kopen organized the April 9 conference on alternatives to the tort system for the Luzerne County Medical Society.

"There is no question that caps work. They reduce the size of awards and they eventually reduce the size of premiums," said Randall Bovbjerg, conference presenter and principal research associate at the Urban Institute, a Washington, D.C. think-tank.

"That is all true but what I will say is that the long-term viability of the cap regime is just not as airtight as they’d like to think," he said.

Bovbjerg said there are several alternatives for helping to fix the malpractice crisis, including: mediation/arbitration of claims; creating a special court system to handle malpractice claims, much like the workers compensation system; devising an early offer system when mistakes are made so that if the patient accepts the offer, he cannot sue for pain and suffering.

But Bovbjerg has been a major proponent of creating a system of "avoidable classes of events," or ACEs. Under that system, medical experts would create different lists of classes of adverse medical outcomes that are normally avoidable. Examples would be falls from operating tables, leaving surgical instruments inside a patient, or complications from the failure to diagnose hypoglycemia in a newborn.

There are existing ACE lists for obstetrics-gynecology, general surgery and orthopedic surgery. Bovbjerg said the ACE listings account for one-third of all physician claims in those specialties.

ACEs could entirely replace litigation with an insurance system for designated injuries within certain medical specialties. Injuries could be resolved through a non-liability insurance-style process, similar to how health and disability claims are handled. Injuries that occur and which are not on the ACE list would be settled through the traditional malpractice system, whatever that might be for a given state.

Bovbjerg said the ACE system has several benefits over the current tort system. ACE categories are created dispassionately in advance and are based on avoiding certain classes of injuries.

The tort system, by comparison, aims to prove individual fault and sets standards on a case-by-case basis, which is often costly, arbitrary and time-consuming.

Nancy Udell, conference presenter and director of policy and general counsel for The Common Good, said true malpractice reform won’t be achieved through a patchwork strategy of non-economic caps and other tort measures.

"In our view, the most important principal to guide reform is that the justice system has to be reliable in adjudicating medical disputes," Udell said.

"People should be able to predict what the outcome should be. Right now, there’s no reliable system of setting boundaries of good care and bad so every case is a roll of the dice. That has a lot of really bad side effects," she added.

The Common Good is a Washington, D.C.-based nonprofit that seeks to overhaul the U.S.’s lawsuit culture.

One alternative that the group backs is the creation of a separate court to handle malpractice disputes.

"We’re not saying that juries are incompetent, because they’re not. But medical malpractice is highly complex and most of what a decision turns on is not a question of fact, but a question of law: what is the standard of care?" Udell said.

"What medical malpractices cases come down to is deciding legal aspects of negligence and that’s not the right role for a jury," she said.

When asked about some of these alternatives, a few Pennsylvania legislators said they didn’t sound out of the realm, but the current debate was still focused on caps.

"The idea of a malpractice court has been shopped around here a bit. That’s possibly another solution that can be dealt with," said Corman.