Pennsylvania is among a significant number of states embroiled in an ongoing medical malpractice crisis. What is the common denominator among the states facing this situation? In virtually every instance, the malpractice crisis appears to be the result of escalating costs related to

  • the number of judgments;
  • the size and scope of individual awards;
  • a willingness to settle, rather than contest, frivolous lawsuits; and
  • the dearth of insurance companies willing to underwrite high-risk specialties and other groups.

Perhaps no other state exemplifies this crisis better than Pennsylvania, where the problem extends beyond traditional high-risk groups to affect all realms of health care. The case of Pennsylvania provides a unique look at the malpractice crisis, at short-term and long-term interventions designed to ameliorate the situation, and at nontraditional approaches to the political side of this problem. To varying degrees, physicians working in all parts of the medical care delivery system (and their patients) are in the unenviable position of wondering precisely how and when the crisis will be resolved.

For radiologists in Pennsylvania, the problem is further exacerbated by the perception that there is no end in sight to spiraling practice-related costs in an environment in which revenue-producing opportunities cannot grow quickly enough to keep pace. Greener pastures are tugging at the economic sleeves of Pennsylvania radiologists, along with the lure of practicing in states where tort reform exists and reimbursement is more favorable. Further, the relocation of physicians to other states and earlier physician retirement continue to undermine the ability to provide high-quality care throughout Pennsylvania.

During the past three decades, there have been periodic crises in medical malpractice insurance due to a lack of available coverage and/or an increased cost of coverage.1 A solution already in place in some states is the public medical malpractice insurance plan, with the most common type being the patient compensation fund (PCF). By definition, PCFs offer insurance for medical malpractice liability in amounts that exceed the specified threshold amounts covered by the insured provider’s primary insurance policy or qualified self-insured plan.

In Pennsylvania over the past 4 years, events have borne witness to a nontraditional approach to malpractice reform. This approach has been aided by physicians working with lawyers and legislators to adopt a series of steps aimed at improving the malpractice climate in the state. The physician shortage in Pennsylvania is a long-term problem without a short-term answer. There is irrefutable evidence, however, that malpractice reform increases physician supply.2 Conversely, mounting liability costs in Pennsylvania appear to have dissuaded substantial numbers of residents in the high-risk specialties who receive training in Pennsylvania from locating their clinical practices in the state.3


In 2002, rising premiums, a departure of major insurers from the state, and record-breaking awards against physicians (particularly in the Philadelphia area) created what many referred to as the perfect storm in the medical malpractice field. After considerable debate and scrutiny of the malpractice crisis in Pennsylvania, the governor signed into law the Medical Care Availability and Reduction of Error (MCARE) Act. This legislation provided for broad-ranging changes in malpractice coverage in three distinct areas: insurance reform, medical professional liability reform, and patient safety.

The legislature then approved, and the governor signed into law, legislation that extended the MCARE Fund Abatement Program through 2005. This is the third year for the program, which helps physicians and nurse midwives with the cost of malpractice insurance. The program allows qualifying physicians and other medical professionals to avoid some or all of their MCARE payments, depending on the risk levels of their specialties. High-risk practitioners, such as obstetricians, orthopedic surgeons, and nurse midwives, may qualify for 100% abatement, while other physicians (and, for 2005, podiatrists) may qualify for 50% abatement. To date, the abatement program has provided more than $211 million in financial relief to medical professionals.


MCARE is a state-managed, state-mandated insurance fund that provides supplemental medical malpractice insurance (from $500,000 to $1 million) for Pennsylvania’s health care providers. Provided there are sufficient market-driven options for medical malpractice insurance in Pennsylvania, the MCARE fund is scheduled to be phased out by 2009. The MCARE Abatement Program is part of a group of initiatives and judicial rule changes, intended to tackle the medical malpractice crisis in Pennsylvania, that were undertaken with the goals of protecting medical professionals, maintaining their numbers in the state, and helping to reduce the growing costs of health care and health insurance for employers and individuals.

The medical professional liability reform section of MCARE primarily addresses expert-witness qualifications and expert testimony in medical malpractice. Before MCARE, the Pennsylvania standard on experts’ qualifications for testimony was governed solely by case law. Generally, if the witness possessed knowledge outside the ordinary reach of a layperson and offered testimony consistent with fact, the witness was considered qualified to give opinions as to causation and as to whether the medical care provided deviated from the standard of care. Under MCARE, however, an expert must satisfy specific requirements before being permitted to render expert opinion. The expert testifying in a medical malpractice case must possess an unrestricted license to practice medicine and must be engaged in (or retired within the previous 5 years from) active clinical practice or teaching. Additional requirements include board certification and place limits on how a plaintiff may present an expert from a different specialty. The discovery-rule exception to the statute of limitations allows plaintiffs to commence action within 2 years of the date when it is reasonable for the plaintiff to have knowledge of or discover injury due to the negligence of the physician. MCARE changed this rule, stating that action on medical professional liability may not be commenced more than 7 years from the date of the alleged tort or breach of contract, regardless of when the alleged malpractice was discovered.

The patient safety section of MCARE requires written notice to be given to patients or their families after a serious adverse event. In effect, the law requires hospitals to explain the circumstances and repercussions of serious health complications caused by medical errors.


Historically, physicians (whether acting as individuals or in groups) have been unwilling to embrace traditional mechanisms for articulating their concerns to lawmakers at the state level. The conventional approach, including the use of lobbyists and political action committees, has been the standard method for, among other groups, trial lawyers. This group has been particularly adept at articulating its concerns to Pennsylvania legislators. Efforts that were undertaken beginning in the early 1990s by the Pennsylvania Orthopedic Society and other organizations were directed at expressing members’ concerns about access to, and availability of, orthopedic surgery, neurosurgery, obstetrics and gynecology, general surgery, and cardiology.

Radiologists have been slow to embrace the involvement in reform of their colleagues in other specialties. Excluding physicians’ salaries and benefits, medical malpractice premiums represent the largest practice cost center, and the one with the greatest degree of volatility. In the past, my reticence to participate in the malpractice debate was based entirely on the performance and track record of traditional group efforts in Pennsylvania. I began to investigate the alternatives and determined that a group of specialty care physicians with an understanding of the roadmap to malpractice reform could, in fact, be found virtually under my nose. As a result, in recent months, I have been meeting with senior legislators for no other purpose than to educate them about supply and demand, access and availability, and the need to work together, over the long haul, to create an environment suited to the recruitment and retention of physicians.

Radiologists must understand the options available to them at the grassroots levels and begin to look at these nontraditional means of solving the malpractice crisis. It is naïve and simplistic to point fingers at the legal profession in general and plaintiffs’ attorneys in particular. It behooves all of us to take the time and effort (and invest the money) needed and to begin to speak out on behalf of patient care, patient safety, and the right to practice medicine in a relatively unimpeded environment.

Howard B. Kessler, MD, is chairman of radiology, Holy Redeemer Hospital, Philadelphia.


  1. Sloan FA, Mathews CA, Conover CJ, Sage WM. Public medical malpractice insurance: an analysis of state-operated patient compensation funds. DePaul Law Review. 2005;54:247-276.
  2. Kessler DP, Sage WM, Becker DJ. Impact of malpractice reforms on the supply of physician services. JAMA. 2005;293:2618-2625.
  3. Mello MM, Kelly CN. Effects of a professional liability crisis on residents’ practice decisions. Obstet Gynecol. 2005;105:1287-1295.