Pennsylvania has a long history of high medical malpractice premiums. Many attempts have been made to reform the Quaker Stateâs medical liability system; some have been more successful than others. In the early 1970s, Pennsylvania faced the same malpractice crisis that was affecting many U.S. states. Premiums were skyrocketing, and the commonwealthâs then-largest medical liability insurer, Argonaut, threatened to stop writing policies altogether. In 1975, Argonaut sought to increase premiums by 200 percent for many specialties. In response, the Pennsylvania Medical Society and General Assembly worked together to pass the Health Care Services Malpractice Act (Act 111) of 1975, becoming one of the first states to pass wide-ranging legislative reforms in response to the medical liability crisis gripping the country. The act created the Medical Professional Catastrophic Loss (CAT) Fund. The CATâFund was the United Statesâ first public patient compensation fund (PCF), a state-established liability-funding instrument that provides medical professional liability coverage in excess of a physicianâs primary insurance limits. Several other provisions to restrict attorney fees, mandate arbitration panels and establish a collateral source rule were also included, but these were found to be unconstitutional by the Pennsylvania Supreme Court.
Pennsylvania has continued to reform its medical liability system since Act 111 was passed. In 1996, legislation limiting punitive damages to $100,000 was passed, CAT Fund surcharges were reduced, physicians were allowed to provide affidavits of non-involvement, meaning that they could swear under oath that they were not involved in a case and be cleared of wrongdoing and a four-year moratorium was placed on further medical liability legislation. However, difficulties in the Pennsylvania market continued, with three of the five major malpractice insurers in the state ceasing to write in Pennsylvania by the early 2000s. In response, the Medical Care Availability & Reduction of Error Act (Mcare) was passed in 2002. Its reforms were comprehensive, addressing both medical errors in the healthcare system and reforms to the legal system and the medical malpractice industry.
The Mcare Act sought to emphasize patient safety and reduce medical errors, creating a Patient Safety Authority and requiring all hospitals to incorporate detailed patient safety plans. It also included a range of legal reforms to restrict frivolous law suits by instituting stronger expert witness qualifications and sanctioning lawyers who brought frivolous claims. Additionally, McareÂ restructured the states CATFund, renaming it the Mcare Fund and equipping it with $400 million in state subsidies to reduce physician assessments. It also increased assessments for doctors with excessive claims and required insurers to offer patient-safety discounts and credits.
In 2018, the Pennsylvania Supreme Court made a decision that has significantly changed the scope of what is available in the discovery process for medical liability lawsuits, making it easier for plaintiffs to obtain materials related to physician performance and credentials. These materials were previously considered protected from discovery by the commonwealthâs Peer Review Protection Act (PRPA), which gave increased protection to healthcare professionals and review panel evaluations of physician performance that investigate possible malpractice incidences. The PRPA considered materials that are prepared as part of a peer review process privileged and protected from discovery. However, in the 2018 decision of Reginelli v. Boggs, the Pennsylvania Supreme Court held that the PRPA does not extend protection from disclosure to a non-licensed, third-party entity or committees or individuals reviewing physician credentials. The Pennsylvania Supreme Court found the protective privilege of the PRPA did not apply to Boggâs âperformance file,â which was authored by his supervising doctor at the hospital. The court came to this conclusion because the hospital itself was not âapproved, licensed or otherwise regulated to practice or operate in the healthcare field under the laws of the Commonwealth,â and because the performance file was a review of Boggsâs credentials, which does not fall within the PRPAâs evidentiary privilege. This holding has the potential to have widespread effects on the materials that are discoverable and likely opens the door for plaintiffs to seek additional reports and files during discovery.
In 2019, the Pennsylvania Supreme Court, in a 4-3 decision, struck down the seven-year statute of repose contained in the Mcare Act as unconstitutional. Mcareâs statute of repose had limited the application of the discovery rule to seven years. After seven years, the statute of repose barred the patientâs ability to bring action. Prior to this decision, the only exceptions to the seven-year limitation were for minors and/or those who suffered injuries caused by a foreign body unintentionally left behind. Now, there is no absolute time limitation on discovery. The court reasoned that Mcareâs statute of repose conflicted with the âopen courtsâ provision in the Pennsylvania Constitution, which guarantees that âall courts shall be open; and every man for any injury done to him in his lands, goods, person or reputation shall remedy due course of law.â Medical professionals and their insurers now face potential exposure for claims long after treatment is rendered.