Consumer Group Releases Two New Studies Undermining Leading Arguments for "Tort Reform"

November 21, 2016

Joanne Doroshow joanned@centerjd.org
J. Robert Hunter loonlakeme@aol.com

New York - Americans for Insurance Reform (AIR), a coalition of nearly 100 consumer and public interest groups representing more than 50 million people, today published two major new studies of the medical malpractice insurance industry. Stable Losses/Unstable Rates 2016 finds that medical malpractice premiums and claims per doctor are currently at their lowest level since data were first recorded four decades ago.  Premium Deceit 2016: The Failure of “Tort Reform to Cut Insurance Prices, finds that state limits on patients’ legal rights have no impact whatsoever on insurance rates for doctors.

These studies come at a critical time for health care in America, with new Congress and the President-elect both indicating they will push for repeal of the Affordable Care Act.  Medical malpractice “tort reform” proposals, which strip injured patients of their legal rights and undermine the authority of local juries, have been part of many ACA replacement bills.  They are also part of U.S. House Speaker Paul Ryan’s published anti-Obamacare plan, which asserts that such measures are needed to reduce high insurance costs for doctors to keep them in practice.  The AIR studies show such arguments to be entirely baseless.

Written by AIR co-founders J. Robert Hunter, Director of Insurance for the Consumer Federation of America, and Joanne Doroshow, Executive Director of the Center for Justice & Democracy,Stable Losses and Premium Deceit also demonstrate how the medical malpractice insurance industry manufactures liability insurance crises for America’s doctors, price-gouging them with skyrocketing rates.

“Forty years of inflation-adjusted data show that medical malpractice claims and premiums are the lowest they have been in this entire period,” said Hunter.  “The periodic premium spikes we saw in the data, such as in the mid-1970s, the mid-1980s and between 2002 and 2006, were not related to claims changes but to the economic cycle of insurers and to drops in investment income.  The last crisis ended a full decade ago and insurance rates for doctors have been dropping like a rock ever since.  This is true whether or not a state enacted severe medical malpractice tort restrictions. In fact, states that resisted adopting such harsh measures saw a greater drop in average medical malpractice insurance rates than states that passed them.”

Doroshow added, “Federal medical malpractice proposals in ACA replacement bills, such as ‘caps’ on compensation for injured patients, are bad polices because they place incredibly cruel and unfair limits on the constitutional rights of everyday Americans.  Our studies show that such measures would do nothing to lower malpractice premiums for doctors, which are already at historic lows.  They will serve only to line the pockets of insurance companies, reduce the quality of our nation’s healthcare, and increase the deficit as injured victims would be forced to turn to government health and disability programs for help.”

Major finding are as follows:
Stable Losses/Unstable Rates 2016.

• When adjusted for medical care inflation, both premiums and claims per physician are currently at their lowest level in four decades.
  
• When adjusted by urban consumers CPI index (a more conservative inflationary adjustment) premiums are the lowest they have ever been, and claims are at their lowest since 1982.
  
• Total medical malpractice payouts have never spiked and have generally tracked the rate of inflation, while premiums for doctors have sharply increased three times over the last 40 years: 1974-1977; 1985-1988, and; 2002-2006.
  
• At no time were these three periods of severe rate hikes (i.e. “hard” insurance market) connected to any increase in claims or tort system costs, which have remained stable.
  

Premium Deceit 2016; The Failure of “Tort Reform” To Cut Insurance Prices.

Examining the impact of “tort reforms” and “caps” on damages enacted in response to the 2002-2006 medical malpractice insurance crisis, AIR finds:

• States that enacted new limits on patients’ legal rights in medical malpractice cases saw an average 22.7 percent decrease in pure premiums from 2002 to the present – but states that did nothing saw a larger average drop of 29.5 percent.
  
• States that enacted only caps on damages saw an average 21.8 percent decrease in pure premiums from 2002 to the present – but the states that did nothing saw an even greater average drop of 28.9 percent.
  

Both studies:  
Severe rates hikes experienced by doctors during the three past insurance crises were not the result of exploding claims or tort system costs but rather the industry’s own boom and bust economic cycle, dictated by the state of the economy and insurance industry profitability, including bond and stock market gains or losses.

Copies of the studies can be found here:
Stable Losses/Unstable Rates 2016: http://centerjd.org/content/stable-losses-unstable-rates-2016

Premium Deceit 2016: The Failure of “Tort Reform to Cut Insurance Prices: http://centerjd.org/content/premium-deceit-2016-failure-tort-reform-cut-insurance-prices

Operation of Bicycles on the Roadways of Pennsylvania

Operation of Bicycles on the Roadways of Pennsylvania[1]

Dale G. Larrimore, Esquire

Larrimore & Farnish, LLP

            The general rule in Pennsylvania, as in most states, is that every person riding a bicycle upon a roadway must be granted all of the rights and must be subject to all of the duties applicable to the driver of any vehicle.[2] With a few minor exceptions, every person operating a pedalcycle upon a highway shall obey the applicable rules of the road as contained in the Vehicle Code. A bicyclist must have the bike under such control that he or she can stop or turn it and avoid collision with persons or other vehicles.[3]

            Although vehicles proceeding at less than normal speed of traffic are normally required to be driven in the right-hand lane then available for traffic, this rule does not apply to a bicycle that is using any portion of an available roadway due to unsafe surface conditions, or when overtaking and passing another vehicle proceeding in the same direction, or when preparing for a left turn at an intersection or driveway, or when using a roadway that has a width of not more than one lane of traffic in each direction.[4] A pedalcycle may also be operated on the shoulder of a highway, but it must be operated in the same direction as required of vehicles operated on the roadway.

            Operating a bicycle the wrong way on a one-way street is a violation of Section 3308[5] of the Vehicle Code. This violation occurs at the moment a motorist or a bicyclist actually travels in the wrong direction and a police officer has probable cause to stop the driver of such a vehicle on observation of it proceeding in the wrong direction for any distance.[6]

            Bicyclists are exempt from some of the provisions of the code that would otherwise control their activities. While vehicles may not be operated upon sidewalks, this section of the code specifically excludes “human-powered vehicles.”[7] While sections of the Vehicle Code pertaining to “vehicles” would apply to bicycles, any section that pertains to “motor vehicles” would, by definition, not apply to a bicycle.[8] Other sections of the code specifically exclude bicycles from activities that are permitted for motor vehicles; such as prohibiting bicycles from the use of freeways.[9] 

            All vehicular turns, including turns by a bicyclist, shall be made in accordance with Section 3331 of the Vehicle Code[10] (relating to required position and method of turning). Any bicycle that is being operated at slower than a prevailing speed must be operated in accordance with the provisions of Section 3301 of the Vehicle Code (relating to driving on right side of roadway) unless it is unsafe to do so.[11]

            If a bicyclist is a minor teenager, he or she is considered capable of appreciating the dangers that are incident to street travel.[12]  However, the parent of any child is responsible if the parent knowingly permits his or her child to violate the provisions of the Vehicle Code.[13]

            A bicycle is a “vehicle” under the Vehicle Code and the operator of a bicycle is subject to prosecution for driving under the influence of alcohol or a controlled substance.[14] Prior to amendments in the Vehicle Code effective on February 1, 2004, the Implied Consent Law[15] only applied to “motor vehicles,” but Section 1547(a) of Vehicle Code now applies to all vehicles, not just motor vehicles. The Commonwealth Court has held that it was “clearly the Legislature's intent to require those operating bicycles on the highway to comply, in pari materia, with the provisions of the Code relating to the safe operation of motor vehicles on the highway.”[16]

            Operators of bicycles are not permitted to carry any package or article that would prevent the operator from keeping at least one hand upon the handlebars.[17] Since a bicycle is a vehicle under the Vehicle Code, bicycle operators must comply with Section 4903, prohibiting the operation of a vehicle if it is loaded in such a manner that any of its load would be dropped.[18] The operator of a bicycle must use the permanent and regular seat and no pedalcycle may be used to carry more persons at one time than the number for which it is designed and equipped.[19]  The Vehicle Code also establishes the required equipment that must be maintained on bicycles when they are operated on highways.[20]

            A person under 12 years of age is not permitted to operate, or ride as a passenger on, a bicycle unless the person is wearing a pedalcycle helmet meeting the standards of the American National Standards Institute, the American Society for Testing Materials, the Snell Memorial Foundation's Standards for Protective Headgear for Use in Bicycling or any other nationally recognized standard for pedalcycle helmet approval.[21]

            While bicycles may be parked on sidewalks or roadways, they must not be parked in such a manner as to obstruct the movement of a legally parked motor vehicle, or in any other manner that conflicts with the rules regarding the parking of motor vehicles.[22]

            Drivers of motor vehicles are permitted to overtake and pass a bicycle proceeding in the same direction, but they must pass on the left at a safe and prudent speed and at a safe distance of not less than four feet from the bike.[23] Finally, it should be noted that a provision of the Vehicle Code regarding the operation of motor vehicles also has specific application to a common vehicle-bicycle type of accident, in which a bicyclist runs into an opened door of a parked car. “No person shall open any door on a motor vehicle unless and until it is reasonably safe to do so and can be done without interfering with the movement of other traffic ....”[24]  Although a motorist or passenger has a right to step out of his or her vehicle and onto a roadway, there is a duty to look for approaching traffic, including bicycles, when doing so, and he or she must continue to look and exercise reasonable care under the circumstances.[25]

---

[1] For a more thorough and detailed analysis of Pennsylvania law controlling the operation of vehicles through intersections, see Dale G. Larrimore, Pennsylvania Rules of the Road, § 8:4 (West’s PennsylvaniaPractice Series, Vol. 13) (2015-2016).

[2]  75 Pa.C.S. §3501; Com. v. Ibrahim, 127 A.3d 819 (Pa.Super. 2015), appeal denied, 138 A.3d 3 (Pa. 2016), Com. v. Sisca, 245 Pa. Super. 125, 369 A.2d 325 (1976); Slosky v. Wood, 41 West 243 (1960).

[3]  Corter v. Hanna, 32 Del. Co. 13 (Pa. C.P. 1943).

[4] 75 Pa.C.S. §3301.

[5] 75 Pa.C.S. §3308 (Upon a roadway designated for one-way traffic, a vehicle shall be driven only in the direction designated at all or such times as shall be indicated by official traffic-control devices.”)

[6] Com. v. Ibrahim, 127 A.3d 819 (Pa.Super. 2015), appeal denied, 138 A.3d 3 (Pa. 2016).

[7]  75 Pa.C.S. §3703. However, Section 3508 of the Vehicle Code provides that bicycles shall not be operated “upon a sidewalk in a business district unless permitted by official traffic-control devices, nor when a usable pedalcycle-only lane has been provided adjacent to the sidewalk.” 75 Pa.C.S. §3708. Additionally, local governments may enact ordinances prohibiting certain activities regarding bicycles. See 12-808 of the Philadelphia Code, prohibiting anyone 12 years of age or older from riding a bike on any sidewalks in the City.

[8] See 75 Pa.C.S. §102.

[9] 75 Pa.C.S. §3511, with limited exceptions as contained in this section of the code.

[10] 75 Pa.C.S. §3331.

[11] 75 Pa.C.S. §3505(a) to (c) and 75 Pa.C.S. §3301. (For additional clarification of this rule, see the unpublished memorandum opinion by Ford Elliott, P.J.E., in Com. v. Smith, 2016 WL 1545541 (Pa. Super. 2016)).

[12] Lopo v. McFadden, 30 Luz. L. Reg. Rep. 279 (1947).

[13] 75 Pa.C.S. §3503.

[14] Com. v. Brown, 423 Pa. Super. 264, 620 A.2d 1213 (1993).

[15] 75 Pa.C.S. §1547(a) (“Any person who drives, operates or is in actual physical control of a vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine for the purpose of determining the alcoholic content of blood or the presence of a controlled substance if the police officer has reasonable grounds to believe the person to have been driving, operating or in actual physical control of the movement of a vehicle ... [while under the influence of alcohol or a controlled substance.]”)

[16] Bilka v. Com., Dept. of Transp., Bureau of Driver Licensing, 92 A.3d 1253 (Pa. Commw. Ct. 2014).

[17] 75 Pa.C.S. §3506.

[18] 75 Pa.C.S. §4903(a); Com. v. Brown, 423 Pa. Super. 264, 620 A.2d 1213 (1993).

[19] 75 Pa.C.S. §3504 (except that an adult rider may transport a child in a pedalcycle or in a trailer towed by a pedalcycle).

[20] 75 Pa.C.S. §3507 (e.g. lights, reflectors, brakes and audible signal devices).

[21] 75 Pa.C.S. §3508.

[22] 75 Pa.C.S. §3509.

[23] 75 Pa.C.S. §3303(a)(3).

[24] 75 Pa.C.S. §3705.

[25] Heath v. Klosterman, 343 Pa. 501, 23 A.2d 209 (1941).