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The state Senate is expected to vote tomorrow on measures that would put to the Pennsylvania electorate the question of whether to amend the state constitution so as to allow for tort caps. The senators will weigh the merits of proposals from two bills: Senate Bill 50 would amend Article III, Section 18 so that non-economic damages, but not economic damages, could be limited, and Senate Bill 1000 would limit only non-economic damages in certain medical professional liability actions. The clamor leading up to the vote intensified Friday when Public Citizen, a Washington, D.C.-based consumer advocacy group, issued a 51-page report that argues that Pennsylvania doctors are not facing as foreboding a “crisis” as has been claimed. Bar associations and plaintiffs’ lawyers’ organizations have been vocal in opposing any tort cap measures. The Pennsylvania Bar Association, on its Web site, urges its members to call their local senators to ask them to vote against S.B. 50 and 1000. Philadelphia Bar Association Chancellor Gabriel Bevilacqua has been to Harrisburg to address a committee of legislators, asking that the proposals be voted down. “When I spoke, I pointed out that there has been a lot done by the courts with respect to the perceived crisis,” Bevilacqua told The Legal Intelligencer, “and that those initiatives should be given time to take effect before such a severe abridgment of juries’ rights is considered.” Bevilacqua noted that the bar’s stance on the matter reflects the views of the majority of its members, both plaintiffs’ attorneys and defense counsel. Philadelphia Trial Lawyers Association President-elect James McEldrew III said members of his organization had been notifying their clients of potential ramifications of any constitutional amendment. “Many of the cases that this constitutional process would hurt most [involve] the elderly, young children, mothers and sick infants,” McEldrew said. But there are professional legal organizations that support tort caps. Pennsylvania Defense Institute President Michael F. Faherty said the medical malpractice insurance imbroglio has put a spotlight on the issue of excessive verdicts in general. “I think that my organization, composed of defense counsel and those who represent insurers, really has a perspective from the trenches,” Faherty said. “We see the plaintiffs’ injuries and the consequences of them, but also the consequences for insurance premiums that affect Pennsylvanians. That’s a perspective that needs to be heard.” Points raised in the Public Citizen report, titled “The Facts About Medical Malpractice in Pennsylvania,” includes the following: The annual number of medical malpractice awards in the state decreased as much as 13 percent from 1995 to 2002. The number of medical malpractice cases filed in Philadelphia alone dropped 58 percent from 2002 to 2003. The number of $1 million medical malpractice jury verdicts in Pennsylvania fell 50 percent from 2000 to 2002. Faherty responded to the report by stating that the number of doctors leaving the state doesn’t lie. “My fear is that quality doctors will see the unfairness of the situation and go elsewhere,” Faherty said, “leaving those less qualified in their place.” As currently worded, Article III, Section 18 allows the General Assembly to draft legislation concerning employer liability for workplace injuries and bars limitations on all other actions arising from injuries. S.B. 50 would keep the ban on limits for economic damages in general torts but allow legislators to “limit by statute” non-economic damages. S.B. 1000 would permit the General Assembly to limit non-economic damages in medical professional liability actions, “but only if the act or omission alleged does not result from reckless, willful or wanton misconduct or does not result in an injury determined by the fact finder to be a serious impairment of bodily function, serious disfigurement or death.” Amending the constitution is a years-long process. The Legislature would have to approve any such proposed amendment twice, in identical form, during two consecutive legislative sessions. The measure would then go to voters for a statewide referendum. Bevilacqua said the bar association’s lobbyist in Harrisburg had been “extremely active” in discussing the issue with senators. “He has reported to us that the [proposal for] caps on general tort damages will not pass,” Bevilacqua said. “But he believes that we need to redouble our effort in order to forestall the [measure for] caps on med mal damages.”

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