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A deeply divided state Senate passed legislation yesterday morning to place limits on pain-and-suffering damages that juries can award in medical malpractice lawsuits but only after narrowly rejecting two other proposals. The legislation, Senate Bill 9, will go to the House of Representatives, which last year approved a broader measure pertaining to all civil suits. The Senate vote on the controversial so-called caps has followed numerous complaints and demonstrations by physicians who say that out-of-control jury awards have made Pennsylvania a hostile place to practice. “While the Pennsylvania Senate . . . chose not to address broad lawsuit abuse, the Pennsylvania Medical Society applauds those senators who stood up for patients by voting to address the negative impact lawsuit abuse has on patient care,” Roger F. Mecum, the society executive vice president, said in a statement yesterday. Michael F. Faherty, president of the Pennsylvania Defense Institute, said he would rather have seen the Senate endorse the broader-based revision for all civil lawsuits. “I’m happy for the Pennsylvania doctors but not so happy for the Pennsylvania business community,” said Faherty, an attorney at Lavery Faherty Young & Patterson in Harrisburg. Opponents of the legislation, led by the trial lawyers lobby, contend that it would unfairly curtail the rights of victims of medical mistakes who seek redress in the courts. “I’m profoundly disappointed in the actions taken by the state Senate, which would severely compromise the ability of juries to set fair compensation for the victims of medical malpractice,” said Gabriel L.I. Bevilacqua, the chancellor of the Philadelphia Bar Association and a partner at Saul Ewing. The legislation seeks to amend a portion of the Pennsylvania Constitution that has stood for 130 years since lawmakers repealed provisions allowing railroad operators to limit their liability in accidents. But the constitutional amendment process, which includes requiring voter approval, could take several years. And even if an amendment were eventually approved, it would not dictate a specific limit on non-economic damages. To make that a part of law, the Legislature would have to pass a bill setting specific amounts. Any proposal to change the constitution must pass both the House and the Senate in two consecutive two-year sessions of the Legislature and then receive voter approval. “I suspect that the battle will be as rigorously fought next year, and hopefully we’ll have a different outcome,” Bevilacqua said. “While this is a temporary disappointment, I am confident that at the end of the day, the people of this commonwealth will reject limitations on our hallowed right to have a jury sentence damages.” Robert Mongeluzzi, the president of the Philadelphia Trial Lawyers Association, also said the fight is not over. “This is one step in an eight-step process before you can amend the constitution,” he said. Two other caps proposals — one pertaining to all civil suits and another to the least egregious medical malpractice cases — failed by three or fewer votes when voted on earlier in the night Tuesday. Republicans, who control the Senate, sponsored the proposals but remained at odds through long closed-door talks Tuesday over the question of whether to extend the possibility of caps to all civil liability suits or just to medical malpractice suits. The latter proposal passed on a 28-22 vote to amend it into an existing bill, which also then passed the 50-member chamber. Most Democrats and a few Republicans opposed the measure, saying that insurance reform and tighter controls on the filing of civil lawsuits, not caps, would better stabilize the rates that physicians must pay for insurance. The Senate Republican leader, David J. Brightbill of Lebanon County, called the legislation “what the state of Pennsylvania needs to deal with its medical malpractice crisis.” In general, proponents had framed the legislation as a way to stabilize the rising insurance rates that physicians say are forcing them out of business or to move their practices to other states. Faherty said that if caps become law, the state would see less medical malpractice litigation. “Currently we see some cases that are quite weak but are filed on the chance that it might hit the lottery of what some jury might award,” Faherty said. “If that possibility is largely removed from the legal landscape, you’ll see fewer cases going forward.” Mongeluzzi said he was gratified that the Senate rejected the measure proposing caps on all civil lawsuit damages. “I don’t think that there’s any evidence or justification for that chamber to provide blanket immunity to manufacturers of defective products, big tobacco, unsafe work sites, drunk drivers or environmental polluters – all of whom could benefit from caps on damages,” Mongeluzzi said. Nationally, 24 states do not have caps on pain-and-suffering damages, while 26 states cap damages, whether in medical malpractice cases or all civil suits, according to the National Conference of State Legislatures, a research group. Melissa Nann contributed to this article.

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