Tort reform and medical malpractice are certainly familiar topics, with a lot of legislative history to them.  There may not be a set of issues that I have thought about more, or attempted to negotiate more extensively, or been vilified more over my point of view.

I do not for a moment challenge the goals, or doubt the intentions, or fault the enthusiasm, of those in this Chamber who advocate constitutional change.  We have a crisis in this Commonwealth, serious and complicated and frustrating, and the series of reforms already approved have not exhausted opportunities to attempt additional fixes.

So it is important that we have this debate. In these troubled and contentious times, we should thoroughly examine every potential remedy.  But that does not mean we are obliged to adopt every step that every interest group asks.

That so many groups so ardently seek caps as the one true reform, does not mean it is necessary or fair or effective.  I am convinced that in many places the emotional stakes have superseded the financial stakes involved, and I think we have to question what the real result will be if this proposition succeeds.

It will surprise no one when I say I cannot support this effort to change the Constitution. I will admit up front my strong emotional involvement in this issue.  My view comes from my training, my experience, and my knowledge of too many instances where things have gone horribly wrong for people.

There are family members who have suffered consequences because conditions were misdiagnosed or because tests were not administered when they should have been.  None of this resulted in a lawsuit.  There is a lesson in that.  The extent of the malpractice problem is by no means fully documented by counting lawsuits.

No one denies there is a serious problem.  However, there is every reason to question this solution that has been embraced as a miracle cure.

One of the constants of our legislative experience is that we tend to do things differently than other states.  We rarely ever accept other state experience as proof of anything.  Yet, on this issue, the purported best experience in the best state is infallible proof that a cap is the answer.

I have received any number of letters saying that, if we do not impose caps, then people are moving to Virginia, where they have a hard cap on non-economic and on economic damages.  And then I read articles about Virginia physicians storming their capital, demanding that the cap number be lowered, or they are leaving.  California is frequently cited as cap nirvana, but there are a slew of other fiscal and economic problems there causing businesses and professionals to depart.  There is simply not a perfect number or a perfect situation to be found.

The rhetorical excesses on this issue make it very difficult for people to get a fix on the problem or the cure.  In a recent letter to the editor, the President of the State Chamber writes that: “For every legitimate lawsuit filed on behalf of someone who has been egregiously wronged, there are mountains of frivolous lawsuits tying up our courts and excessive jury awards for which the ‘punishment’ does not fit the ‘crime’.”  This so-called mountains-to-one ratio is pure fiction and pure nonsense.  It was not close to true before the Supreme Court instituted the rules against frivolous actions, and it is nowhere near true now.

The oft-stated contention is that caps work.  What does that really mean?  If this constitutional question is offered, and approved, and the anticipated legislation is passed, what do Pennsylvanians actually get?  Safer medicine?  Safer products?  Safer processes?

The answer has to be “no.”  If the risk of lawsuit does not accomplish these ends, limiting the exposure to lawsuit certainly will not.

Do we get lower insurance rates?  Maybe, someday, some single-digit reductions.  If we truly know anything in this arena of ever-conflicting contentions, we can be sure that insurance companies are not going to reduce rates until they have mounds of experience that compels them to do so.  And when they come down, the reduction may not compensate for the costs we have imposed on injured individuals.  One of these days, the free ride the insurance industry has received from intensive scrutiny of their practices and responsibilities has to end.

Do caps mean that experienced medical professionals will agree to continue practicing in Pennsylvania?  Many objected to having that condition attached to the substantial MCARE relief we approved in December.  An irate doctor from my district, who has blessed a number of Senate offices with his calls, denounces this as “indentured servitude” on a par with “slavery.”  Again, this has become a one-way set of demands, with the sense of proportion and perspective sadly absent.

The impact of the cap is felt the most by those without other means of recovery.  It is not one or two or three individuals so situated.  If we do a hard cap, we put the most grievously injured persons in the same class with those who try to game the system.  That is the best justice we can offer?

It is as if we have patients suffering from a massive, serious infection, and we say surgery will not work, and we cannot wait for antibiotics, so let us just stick them in quarantine, for it will help all those not exposed to the risk of infection.  It is an answer, but an unjust one.

There is a genuine concern over our ability to attract younger practitioners in the specialties.  I wonder what kind of incentive we are offering if it requires clamping down on victims to entice people to practice here.

It is very clear that many people are very angry at lawyers, and at judges, and at juries.  As a member of the legal profession, I am outraged over what some do, their tactics and their arguments.  But to take out this anger by limiting the remedies available to victims is hard to justify.

I do not for moment minimize the service and the sacrifice involved in the practice of medicine in this age.  It takes a great deal of time, and study, and effort, before licensed practice begins.  And many begin practice under not only the strain of responsibility, but the burden of a considerable debt load.

There is always something seductive in the argument to let the people decide.  But then you think about the stakes -- trading in a right to remedy for individuals for potential financial relief for professional and business groups.

Nor do I believe this is the end of it. Because we all know that this will not solve the problem.  When rates do not drop fast enough or far enough to satisfy medical practitioners, they will be back.  When they deride hundreds of millions of dollars of financial relief as “band-aids,” they assuredly will be back.  And the remedies requested will be even more drastic.  I have received more than the occasional piece of correspondence saying that juries are the problem, and therefore we should get rid of juries.  Will that constitutional guarantee be the next piece put on the auction block?

The language in question is not from the “create a right” movement of recent activist times.  It has been in place for more than a century and a quarter.  Granted, it was not crafted by the Founding Fathers.  However, that does not mean it is a second-rate protection.  A lot of what was written in that 1874 Constitution remains in place and intact because it was written with reform and the public interest in mind.

This certainly is not the only place where our state Constitution is unique or relatively unique.  That reflects our tradition of independent thinking. There is a reason we are not known as the “Conformity State.”

From the moment this latest round of intense advocacy began, we have been shooting for a moving target.  Many of the things we have done were once extremely important, such as shutting down frivolous lawsuits and closing the door on venue shopping.  Almost as soon as they were done, the impact was discounted, or even disparaged.  Which is too bad, because there are results appearing, such as the drastic drop in filings in Philadelphia.  Why have these notable reforms been given short shrift?  Because there are those in the community who will not be satisfied with anything short of immunity from lawsuits.

Imposition of caps is not the only answer to curtailing litigation.  There was an article recently about the rise in mediation efforts, at Drexel and in other places, to keep disputes from turning into lawsuits.  Did the caps debate encourage people to be more aggressive in seeking alternative resolutions?  Probably.  But that does not subtract in the least from its promise.  If you give people a choice -- keeping disputes out of litigation versus stripping away a right -- most would pick staving off lawsuits, is my guess.

I believe that this remains an important provision in the Constitution, that it was put in there for good reason, and that we err in changing it now. What people are seeking to achieve in shoring up our medical care structure is necessary and good.  The method being proposed here is, in my judgment, wrong.  I am a “no” vote on this proposal, and I hope there will be others joining me, not to close down the debate on this malpractice issue, but to move it in a more productive and defensible direction.