Senate Adopts Baker Resolution Calling For Transparency In Proposed Court Rule Change

Sen. Lisa Baker, R-20th, offered remarks on the floor of the Senate today on Senate Resolution 20. The resolution is in response to a proposal being considered by the State Supreme Court’s Civil Rules Procedural Committee that could reverse efforts taken in 2002 to rein in medical malpractice costs. The resolution directs the Legislative Budget and Finance and Committee (LBFC) to conduct an analysis of the impact of the original change brought about by the recommendation of the Interbranch Commission in 2002. It also directs the LBFC to study the impact of the current proposal by the Civil Rules Procedural Committee. The LBFC will be required to hold at least one public hearing and to provide the General Assembly with its final report by January 1, 2020. This will give the legal community, the medical community, the business community, and the public ample opportunity to weigh in with statistics, trends, arguments, and philosophies.

The Senate adopted the resolution.

These are Sen. Baker’s floor remarks regarding SR 20:

“The intent of this resolution is very simple.  We are asking the Supreme Court to press the pause button and delay its proposed rule change on medical malpractice venue until the appropriate analysis can be conducted.

There was a great deal of confusion and consternation when this proposal came to light.  For nearly every Pennsylvanian, there was not a hint of crisis or sense of urgency to justify this sudden move to turn back the clock.

Naturally, questions and concerns abound.  How does the equilibrium on litigation and insurance rates achieved over the past decade and a half constitute a problem requiring revision?  How does the prospect of increased litigation and rising insurance costs in any way improve the provision of health care or encourage capable and committed people to pursue careers in medicine and stay in Pennsylvania?  When we face so many significant challenges in health care, why would we act to destabilize the situation for no apparent reason?

Those who were involved in state government during the late 1990s and early 2000s will never forget the severe trauma the medical malpractice insurance crisis caused for health care and our economy.  Practitioners squeezed by soaring costs closed their practices and relocated, which aggravated problems of access in rural areas and urban neighborhoods alike.  The resultant emotional protests and vigorous reform campaigns are seared on our memories as well.

Those who were in charge at the time listened, studied, negotiated, passed legislation, approved rules, and decided in the best interests of Pennsylvania, our citizens and our communities.

Curtailing venue shopping and requiring certificates of merit were effective remedies that involved constructive participation and action by all three branches of state government.  These were well-considered and thoroughly vetted reforms.  To the surprise of critics, they worked as they were designed to.

Does the rule change currently proposed carry the promise of improved health care?  One of the painful lessons learned since the medical malpractice crisis is that practitioners who depart and facilities that close rarely return to service or operation.  People in my area who must now travel an hour for maternity care are familiar with that consequence.

We hear frequently from constituents insisting on the desperate need for greater transparency and accountability across state government.  This proposed rule fails both tests, being developed without notice and unveiled with neither an anecdotal nor a substantial case being made for necessity.

Look at the lengthy list of organizations supporting the current system.  Contrast that to the relative few who are applauding change.  This of course is not a referendum, but the overwhelming weight of opinion being expressed should matter a great deal.

We have all received a provocative letter of opposition to my resolution from a major player in this debate.  They have resurrected their grievances and their animosity toward those who hold a different opinion and essentially view the courtroom as the paramount place for decision making.  This is a useful reminder of what the debate will look like if this rule is implemented.

If there were laws to be changed, where has this group been with pushing legislation?  If the studies they seek needed to be conducted, what have they been waiting for to commission them legislatively or to undertake them on their own right?  The likely answer is they feared they could not prevail in the public marketplace of ideas.

What we appear to have is only speculative reasoning that the drop in lawsuits and the decisions currently made by local judges and juries are somehow proving disadvantageous to patients.  What we do know is alarming – unrestrained litigation imposes substantial costs in the forms of defensive medicine and unnecessary testing, in addition to the premium increases medical professionals are forced to pay.

The other day, a prominent trial lawyer asserted “There shouldn’t be special rules for health care providers.”  To the contrary, the unique characteristics of health care, the size of the sector, and the risks of reducing both quality and access for patients, warrant different rules.

I certainly respect the role of advisory committees that provide input to our court. But given the serious consequences for health care and our economy, we cannot accept the dictate of a change of this magnitude that may have been devised by only a committee of 14, no matter how accomplished, learned, skilled and thoughtful they undoubtedly are.

Nothing in our action here transgresses on the separation of powers.  There is nothing wrong with an aggressive assertion of the sense of the Senate, or of an independent review of the core question by a reputable committee.

For those worried that this resolution might be too restrictive in its focus, the language is intentionally broad, should other factors prove relevant to the study.

While the proposed rule is subject to another few weeks of comment, that is not a sufficient guarantee that an informed investigation and examination will take place.  That is why this resolution is simply asking for the court to take a pause, to suspend it in the public interest.  To allow time for a full and thorough examination of the implications of this rule, and the potential costs and consequences.”

Listen