Caps threat and further restrictions facing injured workers and consumers when legislature resumes

by Mark Phenicie, Esq.

(8/10/2004) -- When the Pennsylvania Legislature adjourned for the Summer Recess, victims throughout Pennsylvania were finally able to breathe a sigh of relief.

For 18 months--beginning in January of 2003--proponents of putting caps on non-economic damages not only in medical negligence cases but in all civil cases--engaged in the most anti-consumer fabrication of facts ever seen in Harrisburg.

In June 2003, the House of Representatives passed House Bill 1326, an "all-torts" bill that could eventually lead to a referendum of all Pennsylvania voters which would ask them if they wanted the Legislature to set limits on non-economic damages. House Bill 1326 was never considered by Senator Stewart Greenleaf's Judiciary Committee.

We were just beginning, however. On March 9, 2004 the Senate of Pennsylvania amended Senate Bill 9 to allow for caps on non-economic damages in medical negligence cases only, rejecting language from non-medical cases. The Senate debated lasted nearly 24 hours.

Senate Bill 9 was referred to the House Judiciary Committee, chaired by Representative Dennis O'Brien, an avowed opponent of caps. SB 9 was never reported from committee.

House Republican leadership passed House Bill 2722, a mirror image of SB 9 on June 30. House Bill 2722 was referred to the Senate Judiciary Committee, which voted to table HB 2722 by a vote of 10 - 4 on July 1. The 10 votes to table came from 5 Republican and 5 Democrats.

We had to survive on last attack on July 1, as Representative Curt Schroeder's "Discharge Resolution"--trying to discharge the House Judiciary Committee from further consideration of SB 9--fell by a vote of 93 yes and 107 no. The Caps threat for the 2003 - 2004 Session was over!

The Legislature returns from its Summer Recess on Monday, September 29, for 3 weeks before the November 2 Election, and for 3 weeks of the dangerous "Lame Duck Session," which constitutionally ends at midnight on November 30. During these last weeks of the 2003 - 2004 Session, we can expect to see efforts on reinstating restrictive language changing the Doctrine of Joint and Several Liability, which was passed in June 2002, but subsequently stricken by the Commonwealth Court for violating the "two - subject" doctrine; continuing efforts by Pennsylvania physicians to reduce the mandatory minimum insurance coverage from $1 million dollars to $500,000; and efforts in Workers Compensation, which seeks to increase the days an injured worker must see the company doctor from 90 to 180 days, and to limit the amount of award payable to counsel, as well as reduce the time period. We will also see a variety of other tort restriction bills ranging from immunity for non-manufacturing suppliers (retail outlets), to immunity for horse owners and restaurants.

We anticipate another battle over Caps on No-economic Damages in the 2005 - 2006 Legislative Session, probably beginning in January 2005. One reason we were successful this Session was the fact that we were able to destroy physician credibility on the number of doctors practicing in Pennsylvania, the primary "rallying cry" for the Cap proponents. We were also able to rely on virtual 100% support in Senator Robert Mellow's Democrat caucus, as well as strong cap opponents in Judiciary Committee Chairmen Stewart Greenleaf and Dennis O'Brien.

The caps war - while ending successfully for us during the 2003 - 2004 Session will likely rage again. Philadelphia Trial Lawyer President Bob Mongeluzzi and PaTLA President Rich Schubert led us well the past year. With your continued participation, both in identifying and activating victim clients and through your continued political and financial activity on behalf of legislators who are strong enough to stand up for what is right, we can once again prevail.

Mark Phenicie is Legislative Counsel for the Pennsylvania Trial Lawyers Association.