By Scot Chadwick
I’ll bet you’ve never heard of Kaczkowski v. Bolubasz, a 1980 state Supreme Court decision that changed the way lost future earnings were compensated in personal injury lawsuits.
Kaczkowski ruled that a successful plaintiff who could no longer work was to receive all future lost earnings immediately in a lump sum, with no reduction to reflect the benefit of getting the money early. The court’s reasoning was that over the years inflation would cancel out any interest earnings on the money, creating a wash.
Of course, inflation and interest rates aren’t the same, and there was a wide belief in the defense bar that Kaczkowski created a windfall for plaintiffs.
At the time, I was a young lawyer doing (mostly) defense work, and personal experience had convinced me that defendants did not enter the courtroom on a level playing field with plaintiffs. The Kaczkowski decision was something of a tipping point that convinced me that I should try to do something to restore that balance.
My chance came in 1984, when I was elected to the state House of Representatives. Almost immediately I began sponsoring and co-sponsoring tort reform measures, though I must concede that I didn’t have many early victories.
Liability reform measures are difficult to enact now, and were even harder to pass then. My biggest success (and I certainly don’t mean to suggest that I did it alone) came in 1996, with the enactment of several medical liability reforms in Act 135, including a cap on punitive damages. Regrettably, the Supreme Court tossed out some of those reforms, though the cap on punitives still stands.
I retired from the House in 2000, and – talk about timing – went to work for the Pennsylvania Medical Society just as the latest medical liability insurance crisis was reaching the boiling point.
I had the good fortune to lobby for what ultimately became Act 13 of 2002, the Mcare Act, and the results of that legislation speak for themselves. The Act 13 liability reforms, along with some important Supreme Court Rules changes, have resulted in a 46 percent reduction in medical liability lawsuit filings since 2000-2002.
Of course, we’ve lost a few. In 2003, we made a serious run at enacting a constitutional amendment allowing caps on non-economic damages (pain and suffering awards), and came up short. I still have hopes that we can get that done some day, but in the meantime the work goes on. Our more recent successes include the enactment of joint and several liability reform and the new apology law, and PAMED has an ambitious list of additional measures in the works.
As I look back, it’s hard to believe it has been more than 30 years since I arrived in Harrisburg with tort reform on my to-do list. I don’t regret a minute of it.