PA considers changing joint and several liability

In a move meant to rescue health care providers from the state’s malpractice insurance crisis, the Pennsylvania legislature may soon pass the Fair Share Act, a bill abolishing joint and several liability for any defendant found to be less than 60% liable for causing an injury.

The state House of Representatives recently passed the bill and the Senate will consider it. The bill is "a common-sense measure that maintains a plaintiff’s right to collect damages while bringing fairness, balance, and stability to Penn-sylvania’s liability insurance system," says Carolyn F. Scanlan, president and CEO of the Hospital & Healthsystem Association of Penn-sylvania (HAP). "This critical reform will help to keep doctors practicing, hospital services open, and patients healthy."

I’ll sign if . . .’

Scanlan said that there is broad support for these essential reforms. The governor has said he will sign this bill if the Senate concurs on the bipartisan reform, and both gubernatorial candidates have both come out in favor of reforming Pennsylvania’s tort system, Scanlan says. If the reforms are approved, Pennsylvania will join the 35 other states that have already reformed joint and several liability.

In its current form, the legal concept of joint and several liability holds each defendant in a lawsuit financially liable for the full amount of a damage award, even if the defendant’s legal responsibility is deemed to be minimal.

"Joint and several liability is inherently unfair to businesses and individuals," Scanlan says. "It lets the most negligent defendant off the hook while penalizing defendants who were only remotely involved."

Scanlan says that, without this critical change, insurers will continue to avoid doing business in Pennsylvania, leaving health care providers with two options: diverting patient-care resources to paying exorbitant insurance premiums or cutting services. Pennsylvania hospitals are estimated to pay more than $180 million in additional premiums for medical liability insurance compared to one year ago, according to a statewide survey of medical professional liability coverage released by HAP in May.

"Most of these premium increases preceded the collapse of the Pennsylvania liability insurance market," Scanlan says. "Hospitals now going into the market for renewal or replacement coverage as of July through September 2002 — when more than half of all hospital policies expire — are expecting even larger additional premium hikes that will further erode patient access to care. If a hospital cannot afford or get insurance coverage, services will suffer."