The Pennsylvania Fair Share Act: The Fairest of Them All?

On June 28, 2011, Pennsylvania Governor Tom Corbett signed the highly controversial Act 17 of 2011 into law. This legislation has become popularly known as “The Fair Share Act,” as Defendants found to be less than sixty percent (60%) at fault in particular litigation are only to be responsible for paying their percentage of apportioned fault. Described in another way, the legislation protects a Defendant from having to make full payment on damages should another liable Defendant not have the resources to pay their share of the liability. The legislation applies to “all actions brought to recover damages for negligence resulting in death or injury to person or property.”

Gov. Corbett has deemed this legislation to be a victory for Pennsylvania businesses, such as hospitals and insurance companies. The bill’s sponsor, Senator Jake Corman, Republican, argued that forty (40) other states have changed their version of joint and several liability. Opponents of the Act believe that the rights of the injured are being sacrificed for the protection of the wrongdoer.

Prior to the passage of this legislation, a Defendant could be responsible for 100% payment of damages awarded by a Judge or jury even if it was determined that that particular Defendant was only 1% liable for the Plaintiff’s injury. Incidentally, the Fair Share Act contains exceptions to the premise of Defendants paying only their apportioned liability. Where a Defendant is deemed to be more than 60% liable for injuries, said Defendant must pay the full amount of damages. A Defendant may also be compelled to pay the full amount of assessed damages in cases of “intentional misrepresentation,” “intentional torts,” liquor law violations, and when the release, or threatened release, of hazardous substances is involved.
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Lien on Me

Author: Marc L. Penchansky

For over thirty years, the Pennsylvania Department of Welfare has sought to recoup its Medicaid expenses by asserting liens against future settlements or judgments obtained by the patient/Medicaid beneficiary. This practice is commonplace in the United States. When three Medicaid beneficiaries filed a putative class action suit to challenge this long standing process, the Third Circuit had an opportunity to weigh in on the legality of the procedure. Previously, the Supreme Court had assumed without deciding that these liens, when limited to the portion of the award or settlement constituting reimbursement for covered medical costs, were an implied exception to the anti-lien and anti-recovery sections of the Social Security Act. See Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268, 280 n.9, 291-292 (2006).

In Tristani v. Richman the Court by a 2-1 margin upheld the process. The Third Circuit was faced with the task of reconciling seemingly contradictory provisions of the Social Security Act. The Social Security Act conditions Medicaid assistance by obliging the states to require individuals to assign to the state any rights to payment for medical care from a legally liable third party. 42 U.S.C. § 1396k(a)(1)(A). Further, the states are required to “ascertain the legal liability of third parties to pay for care and services under the plan” and, “in any case where such a legal liability is found to exist after medical assistance has been made ․ [, to] seek reimbursement to the extent of such legal liability.” Id. at § 1396a(a)(25)(A)-(B). The Act does not define the method to seek recovery. However, the plain language of the anti-lien and anti-recovery provisions does seem to limit that method.
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The Layers of a Medical Error

The April 3, 2011, suicide of a nurse who administered an improper dose of calcium chloride, 10 times the appropriate amount, which may have led to the death of an 8-month old baby, has brought national attention to the issue of reporting of medical errors. Though the reporting of medical errors is certainly a topic with vast depth (for a more in-depth look, please visit Reporting Medical Errors), and the safety of a patient is the focal point for health care providers, an interesting aspect of the story of Kimberly Hiatt, nurse in the Cardiac Intensive Care Unit at Seattle Children’s Hospital, is the impact of medical errors on the individual making the mistake. This is termed the “second victim” by Dr. Albert Wu, a professor of health policy and management at the Johns Hopkins Bloomberg School of Public Health. Dr. Wu’s concept, coined a decade ago, describes the second victim as the health care provider who made the mistake which led to the harming or death of the patient.

For example, the MSNBC article discussing Nurse Hiatt’s suicide mentions that Surgeons who believed they made medical errors were more than three times as likely to have considered suicide as those who did not. Here, Nurse Hiatt claimed this was the first serious mistake she had made in 25 years of nurse practice. Nevertheless, she was fired from her position within weeks.

Seattle Children’s Hospital officials indicated that they have used a model since 2007 which recognizes the need to use errors to identify and correct systemic problems, rather than focusing on penalizing individuals. Officials also noted that employees are not terminated due for “simple human error.”

This tragic story is certainly thought provoking and touches upon various areas of discussion within the medical and insurance community.

Author: Drew M. Rothman

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