The Republican-controlled state House of Representatives is pushing for further changes to tort law, including a measure that would cap punitive damages in cases in which plaintiffs who reside in nursing or assisted living facilities allege they were injured.

Last month, the House voted on the third consideration and final passage of House Bill 1907 103-89 to amend the Medical Care Availability and Reduction of Error (MCARE) Act to cap punitive damages in lawsuits against personal care homes, assisted living communities, long-term care nursing facilities, home care agencies, home health care agencies and hospices at 200 percent of the compensatory damages awarded in such lawsuits.

The bill is still pending in the state Senate.

The cap would not apply to cases involving intentional misconduct.

The primary sponsor of the legislation, Rep. Glen R. Grell, R-Cumberland, said that he advocated for the legislation because nursing homes in his district should not be “subject to the jackpot punitive damages awards that could result.”

The cap would be the same cap that exists for doctors under MCARE, Grell said.

Grell also said that the legislation would ensure “the financial strength of our nursing homes, especially as we have an aging population in Pennsylvania.”

Robert L. Sachs Jr., the plaintiffs’ liaison counsel to the Philadelphia Common Pleas Court’s nursing home mass tort litigation program and the managing partner of Shrager Spivey & Sachs, said that the legislation is “trying to address a problem that doesn’t exist in Pennsylvania.”

Sachs said that as far as he and other lawyers involved in nursing home litigation can determine there have been only two nursing care cases in Pennsylvania involving punitive damages.

In one of those cases, a Philadelphia jury awarded $5 million in punitive damages for a man who died from sepsis that started with a urinary tract infection, The Legal previously reported. The judge remitted the punitive damages award to $1.5 million to bring the award into line with compensatory damages of $1 million. The other case settled before the jury came back with its punitive damages verdict, Sachs said.

Sachs also predicted that the effort to cap punitive damages in nursing home litigation is just the first attempt to cap punitive damages in all tort cases in Pennsylvania.

Mark E. Phenicie, legislative counsel to the Pennsylvania Association for Justice, said that the bill “is really cruel” to senior citizens. Senior citizens are much less likely to have compensatory damages in the form of economic damages, such as wage loss, which means that having punitive damages available as an option for fact-finders is more important to compensate this class of plaintiffs adequately, Phenicie argued.

Grell said that senior citizens can be adequately compensated if the legislation is enacted into law. The legislation provides for recovery for “full medical costs, pain and suffering, loss of life’s pleasures, all the sorts of things that go into compensatory damages,” the legislator argued.

“Nobody is not going to be fully compensated for their loss,” Grell said.

A cap for punitive damages in lawsuits involving doctors, but not nursing care, was included when MCARE was enacted in 2002, Phenicie said, “because of the nature of the client base, the nature of the potential victim, the drafters did not think” Act 13 of 2002 should cap punitive damages for nursing homes.

Opponents of House Bill 1907 also argue that the bill is unconstitutional because of an 1873 constitutional amendment that states the General Assembly shall not “limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property.”

The House voted 110-82 Jan. 18 on the question of whether the legislation was constitutional.

During debate on the bill, Rep. Brandon P. Neuman, D-Washington, said that the only way to enact constitutional caps on damages awards would be through a constitutional amendment. Supporters of the bill countered during the debate that punitive damages are not considered compensation so such a cap would not run afoul of the constitutional provision.

State Rep. Mike Turzai, R-Allegheny, the majority floor leader, said during floor debate that there are 700 nursing homes in Pennsylvania with 90,000 beds and “we need to make sure we have a … nursing home community in the state of Pennsylvania.”

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.