The Pennsylvania Orthopaedic Society (PAOrtho) thanks Representative Tarik Khan (D, Philadelphia) for sponsoring HB 27 PN 8.  This important legislation attempts to deal with the vexing issue of “surgical smoke”, the unavoidable airborne materials that are generated from certain surgical procedures. 

Surgical suites can be inherently hazardous environments for patients and surgical teams.  Surgical smoke may be generated by a variety of surgical instruments. Currently, surgical teams use Personal Protective Equipment (PPE) and various standard or specialized devices to capture and mitigate exposure within the surgical field and operating room. In addition, surgical suites must meet the highest possible level of air filtration (MERV 16). Finally, all operating rooms are positive pressure chambers with all air flow exiting the space.

House Bill 1460 Printer’s Number 1696, sponsored by Representative Lisa Borowski (D, Delaware), is intended to protect communities from hospital closures and the attendant loss of healthcare access to residents as well as the dislocation of healthcare employees as happened in the cities of Chester and Sharon. The bill provides the Office of Attorney General (OAG) review and approval powers over healthcare facility and practice mergers and acquisitions.

While the Pennsylvania Orthopaedic Society (PAOrtho) believes that protecting communities and workers from private equity acquisition of acute care general hospitals is an important and necessary legislative action, HB 1460 casts its net far too broadly to include physician-owned specialty hospitals and ambulatory surgical facilities (ASFs) as well as psychiatric hospitals, rehabilitation hospitals, long-term care nursing facilities, cancer treatment centers using radiation therapy on an ambulatory basis, inpatient drug and alcohol treatment facilities, and hospice facilities. PAOrtho believes that physician-owned specialty hospitals and ASFs be excluded from HB 1460’s provisions.

On August 25, 2022, the Pennsylvania Supreme Court reversed course on 20 years of medical liability jurisprudence and established new civil procedural rules for medical liability filings. For two decades, medical liability lawsuits had to be pursued in the county of the alleged injury. Under the new rules, a medical liability lawsuit may now be brought in any county with a nexus to the alleged injury. The Court’s action created the environment for a return to venue shopping. Effective January 1, 2023, the new rule is having just that result.

In the late 1990s and early 2000s, Pennsylvania experienced a medical liability insurance crisis. A hardening liability insurance market combined with plaintiff venue shopping led to sharply increasing medical liability insurance premiums. Likewise, the state-run fund that provided coverage over the private insurance limits imposed ever increasing surcharges on physicians and hospitals. Physicians, particularly high-risk specialists (OB-Gyns, neurosurgeons, orthopaedic surgeons, and general surgeons), experienced six-digit liability insurance premiums combined with state-run fund surcharges approaching or at $100,000.00. Physicians began to retire early or leave Pennsylvania. High-risk specialists began to curtail patient services. Many OB-Gyn practices closed, and hospital maternity units shuttered. Two orthopaedic practices (Abington and Scranton) began the process to close for lack of liability insurance at any price. It was truly a crisis and one that current policy makers should attempt to avoid.