RESOLUTION COMMENTING ON MEDICAL NEGLIGENCE LEGISLATION

WHEREAS, Senate Bill 790 has been introduced into the Pennsylvania legislature;

WHEREAS, said legislation has been referred to the Senate Rules and Executive Nominations Committee for further action;

WHEREAS, the proposed legislation would effect the following substantial changes in medical negligence litigation:

1. Informed Consent: Requiring physicians to obtain informed consent only prior to a major invasive procedure except in emergency situations or where the Court deems appropriate. A physician would not be required to advise the patient of information that should already be known, that the patient requested not be revealed, or information detrimental to the patient's health. A written consent signed by the patient would be presumptive evidence that informed consent was given. The standard for informed consent would be changed from that information which would be desired to be known by a reasonable patient to that which a reasonable physician would wish to provide to a patient.

2. Collateral Sources: This provision alters longstanding common law by providing for deduction of any public or group benefits received or to be received by a claimant unless the premium was paid by the claimant or the benefits were from life insurance, a pension or profit sharing plan. Because this would allow a deduction to be made for future benefit that might be received and this might have a dramatic impact on the serious injury difficult liability and limited coverage cases.

3. Punitive Damages: Changes the standard for imposition of punitive damages to a clear and convincing standard requiring that the defendant act with evil motive or disregard a high degree of risk. Would limit punitive damages to not more than 200% of compensatory damages and require bifurcation of the assessment of punitive damages.

4. Statute of Limitations: Alters the minors' tolling statute which applies to all cases involving minors to carve out an exception for minors suffering medical negligence. In cases involving minors under the age of eight, they would be required to be filed within four years after the parent or guardian knew or should have known of the injury or within four years of the minor's eighth birthday, whichever is earlier.

5. Periodic Payment of Future Damages: All awards for future damages which exceed $200,000.00 would be paid in periodic or installment payments.

6. Expert Witnesses: Places restriction on the qualifications of physicians permitted to testify as expert witnesses.

7. Frivolous Lawsuits: Would require plaintiffs counsel to certify the existence of a pre-suit written expert report and that a properly qualified expert has concluded based upon review that the case has merit and require provision of expert reports within three months subsequent to filing the complaint. Sets forth Rule 11-type sanctions for using a not qualified expert. Such a provision places unreasonable restriction on victims who do not seek legal counsel until just prior to the expiration of the Statute of Limitations.

8. Pre-Treatment Agreement to Arbitrate: Permits physicians to require their patients to sign such agreements and requires that the Catastrophic Accident Trust Fund be bound by such agreements.

9. Delay Damages: Excludes health care providers from responsibility for Rule 238 damages for prejudgment delay. The net effect of such a provision is that there would never be motivation for a provider to settle.

WHEREAS, the provisions of Senate Bill 790 have been considered by the Members of the State Civil Committee of the Philadelphia Bar Association present and voting at a regularly scheduled meeting of July 26, 1996;

WHEREAS, it is clear that the proposed provisions of Senate Bill 790 deny injured victims of medical negligence access to the courts while giving physicians and medical providers in general unnecessary safeguards;

NOW, THEREFORE, BE IT RESOLVED that the members of the State Civil Committee present and voting unanimously oppose Senate Bill 790 and recommend to the officers and Board of Governors of the Philadelphia Bar Association that said legislation should actively be opposed in the Pennsylvania legislature. It is further recommended that the lobbyist on behalf of the Philadelphia Bar Association be directed to take all steps necessary to defeat passage of the bill.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: September 26, 1996