New Medical Malpractice Law Takes Effect

John P. Gismondi
January 8, 1997

At the end of this month, a new medical malpractice bill will take effect in Pennsylvania.

This legislation, known as Act 135 of 1996, represents the most significant change in the

medical malpractice field in the past twenty (20) years. Here is a summary of the major

provisions in the Act, as well as some comments on their impact.

Under the new law, the total coverage on each health care provider will remain at $1.2 million, but over the next four years, there will be a gradual increase in primary limits and a corresponding decrease in the CAT Fund layer of coverage. Eventually, by the year 2001, the primary coverage limits will be $500,000 and the CAT Fund layer of coverage will be $700,000.

The impact of these changes will be to shift more money — and therefore more control over settlements — toward the primary carriers and away from the CAT Fund.

However, the chances of winning an informed consent case will likely go down in light of other changes in the new law, primarily on the issue of causation. Previously, the plaintiff did not need to prove causation in an informed consent case; instead, the plaintiff only had to show that he was not provided with that information which a “prudent patient” would consider to be material before deciding to undergo a surgery. Now, however, the plaintiff will have to prove that the unmentioned information would have been a substantial factor in his initial decision to undergo the procedure.

The new law creates both a “cap” and a “floor” on the amount of punitive damages which can be awarded. On the high end, punitive damages cannot exceed twice the amount of compensatory damages, whereas on the low end, punitive damages cannot be less than $100,000, so long as the compensatory award was at least $100,000.

From a procedural standpoint, there are several changes affecting the way punitive damage cases will be handled. First, when a plaintiff files a Complaint containing a claim for punitive damages, the defendant has the right to move to strike that portion of the Complaint until the close of discovery, at which time the plaintiff can move to reinstate the claim by showing the judge that sufficient evidence to support a punitive claim has been developed in discovery. Second, only if the claim is reinstated will the plaintiff be entitled to discovery concerning the defendant’s net worth. Third, the trial of the case must be bifurcated, i.e., the punitive damage issue can be submitted to the jury only after plaintiff receives a favorable verdict on liability.

The impact of these procedure changes will be to slow down the pace of cases involving claims for punitive damages because a hearing will be necessary to re­instate the claim; discovery on financial net worth, which would normally be obtained during the regular discovery phase, will only be permissible once the claim has been reinstated at the close of regular discovery; and trial of the case will be bifurcated.

If a defendant wants to confirm that a plaintiff’s attorney has received a required report, they can file a motion with the court and seek a judge’s verification that the necessary report has been obtained. If the plaintiff’s counsel is found to have violated the certification requirement, the defense counsel may report the attorney to the Disciplinary Board.

Obviously, this certification provision is designed to “weed out” frivolous claims, and it should be successful to some extent in that regard.

Like certain other mandates in the new law, this item may be perceived by trial courts as an unwarranted invasion of their right to regulate their own dockets. For that reason, a provision such as this may be ripe for constitutional challenge, the argument being that only the Supreme Court, not the state legislature, has the right to impose mandatory discovery limits on court litigation. In any event, it is clear that the legislature is “sending a message,” that it wants to speed up the pace of medical malpractice litigation.

This again is a provision which may be regarded by the trial courts as an unwarranted invasion of their right to establish court schedules. As a practical matter, most courts already hold settlement conferences and pre-trial conferences, but they may not do so within the time frame set out in this new law.

If a defendant is dismissed from the case on the basis of the Affidavit of Non-Involvement, but it is subsequently discovered that the physician was involved in the care of the patient, the statute of limitations is tolled during that interim period.