The Physicians' Cincinnatus Society

WHAT IS THE PCS AND WHAT HAS IT DONE

Why the PCS was founded:

The Physicians' Cincinnatus Society (PCS) was founded and incorporated in 1986, after the Pennsylvania Medical Society (PMS) communicated to the board of the Montgomery County Medical Society its official policy regarding the medical CAT Fund: "The Society consistently concluded that mandatory insurance should be retained." This was surprising in the light of the recommendation of a thorough study commissioned by the PMS, the Pennsylvania Trial Lawyers Association

and others, the 1985 Hofflander and Nye report. The study recommended that the CAT Fund's excess insurance function be eliminated. There was also the matter of the Chiropractic Act of 1986 which extricated chiropractors from Act 111. The Chiropractic Act contains a provision which exempts chiropractors from buying professional liability insurance if such insurance is not available or not affordable. No such protection under the law was afforded podiatrists and physicians.

By 1986 when the PCS was founded, the burden of the professional liability insurance requirements imposed by Act 111 was so great that it forced some practitioners out of Pennsylvania, others were forced to retire, while still others had to borrow heavily to avoid having their license to practice revoked for non-payment of the CAT Fund surcharge, even when they were willing to forego coverage by the CAT Fund. Health care providers clearly were deprived of liberty. property and equal protection under the law, basic constitutional rights. Clearly an organization that would take on this task was needed. That organization was the Physicians' Cincinnatus Society founded by a group of physicians from Delaware County and Montgomery County.

Cincinnatus

Declaration of Independence 1776

Bill of Rights signed 1791

The Name and Mission of the PCS:

The Physicians' Cincinnatus Society took its name from the legendary hero of Ancient Rome, Lucius Quinctius Cincinnatus, who was called upon to save Rome when the city was under siege. The Senate persuaded him to leave his farm to assume absolute power. He defeated the Aequi and Voscians who threatened Rome from the east and southeast. After he returned from the battle he resigned his dictatorship and returned to his farm. After the American Revolution, the commissioned officers of the Continental Army formed the Society of the Cincinnati, to have an organization in place so that they could respond quickly in times of need and, like Cincinnatus, do the job and return to their private lives. Now that medicine is under siege and its practitioners are being stripped little by little of their constitutional rights, an organization to defend these basic rights was needed. At the same time there was a strong desire not just to form another organization, but an organization which embodies the principles of Cincinnatus in the same way as Washington and his officers did in the forming of the Society of the Cincinnati. The Physicians' Cincinnatus Society's mission is to protect the rights of physicians and health care providers individually and collectively as they relate to their professional lives and to the protection of medicine in general. Its singular purpose and nonpartisan nature make the PCS uniquely suitable to safeguard medicine. Multi-purpose medical societies have traditionally been relatively ineffective in this area and are often hampered by internal or regional politics.

What has the PCS done:

     The founding members first studied the Pennsylvania Commonwealth court decision in the 1978 McCoy case (McCoy vs.. Commonwealth Board of Medical Education and Licensure, 391 A.2d 723, Pa. Cmwlth., 1978). After speaking with Mr. Fred Speaker, the attorney who represented Dr. McCoy, and with Dr. McCoy, it became clear that the challenge was a sham. Judge Crumlish, who wrote the dissenting opinion, was the only one who understood and cared about the constitutional rights that were being sacrificed by Act 111 and its regulations. His comments warrant quoting here:

     "The cure afforded by the Act is so overwhelming that it has injured many of those it intended to help. Its regulations are unduly prohibitive to both small practitioners... and new practitioners who neither have the financial wherewithal to meet its requirements nor the clientele able to sustain higher medical costs. Once it is certified that a person is qualified to practice a profession, his right to do so should remain unfettered and unhampered until it is established that because of either misconduct or moral, physical or professional ineptitude, he is not fit to perform his duties."

     "Financial security has never been a condition precedent to the practice of medicine, or any other profession, and so to impose such a condition constitutes an unreasonable restriction of a property right resulting in an unconstitutional deprivation of property."

Based on this and the lack of equal protection afforded Pennsylvania physicians and podiatrists vis-à-vis chiropractors, the PCS prepared and filed suit in federal court in 1986. Two surgeons and a podiatrist agreed to be plaintiffs. It took two years before a decision was rendered. (Meier, et.al vs. Anderson et.al, U.S. District Court, E.D. Pa., Civil Action No.87-3145, July 26, 1988). In his ruling the judge conceded that the right to practice one's chosen profession, including medicine, free from unreasonable government interference comes under the "property" and "liberty" concepts of the Fifth and Fourteenth Amendments and is protected by the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment. The judge completely ignored the unequal protection of physicians and podiatrists compared to chiropractors. On the all-important CAT Fund issue, unlike Judge Crumlish, Judge Cahn simply avoided it by stating that this part was "not ripe for adjudication." He could do this because the plaintiffs' licenses were not threatened and no disciplinary actions were pending against them. One surgeon and the podiatrist had paid their CAT Fund surcharge. For the other surgeon who did not have the money to pay, the CAT Fund had waved the surcharge while covering him until the case was adjudicated. A smart move on their part. It provided an out for Judge Cahn so that he could declare the issue "not ripe for adjudication." The PCS appealed and the Appeals Court upheld Cahn's ruling

     While the PCS was in federal court, the Pennsylvania Medical Society filed suit in Commonwealth court challenging the proposed CAT Fund surcharge rate. This resulted in about an eight percent reduction of that rate. Moreover, the court reaffirmed that the surcharge cannot exceed the sum of the claims paid the previous year, the administrative cost for the year, plus a maximum of $15 million reserve. Any sum collected above that had to be refunded or used to reduce the following year's surcharge.

     The PCS kept a close eye on the CAT Fund and studied their annual reports. It was discovered from the CAT Fund's annual reports that the self-insured collectively paid into the CAT Fund millions less than the Fund paid out in claims against them, and this year after year. It was noted that the CAT Fund again began collecting significantly more than the permitted $15 million reserve. Since the PMS did not follow up the court ruling and did not challenge the renewed excess collections, the PCS filed suit in Commonwealth court. One judge heard the case and deferred it to a panel of three judges. The PCS pursued it before the three judges, won an initial victory, then the court seemed to reverse itself. The PCS also filed a class action suit, trying to recover for health care providers refund money for the previous years of tremendous overcharges in which the CAT Fund's reserves were again millions above the allowed reserve. Both suits were eventually consolidated by the courts.

     The political pressures mounted. The CAT Fund Director characterized the PCS as a fringe group not supported by the Pennsylvania Medical Society. The leadership of the PMS characterized the PCS members as a small group of misguided radicals. All this, of course, was not lost on the Commonwealth courts. Under these conditions, the appeal to the State Supreme Court also fell on deaf ears.

     With the 1995 emergency CAT Fund surcharge, the need for further legal action was obvious. Some physicians were already borrowed out and simply could not afford the emergency surcharge. The issue now was "ripe for adjudication." With nowhere else to turn, these physicians looked to the PCS for help. A good number of physicians agreed to be plaintiffs in a suit filed in Commonwealth court on their behalf. Immediate injunctions were denied, and there were efforts to delay legal proceedings as long as possible. At the second hearing, the judge actually deferred the question of constitutionality to the hearing examiners and the medical boards. At that time the PCS attorneys subpoenaed the secret Inspector General's report which documented mismanagement, graft, and corruption within the CAT Fund agency. Governor Ridge refused to release the report, claiming absolute executive privilege. At this point the PCS attorneys switched their suit from state to federal court, because federal law is less permissive toward "executive priviledge" claims than Pennsylvania state law. Even though the case was in federal court, the Commonwealth proceeded with license suspensions, forcing each plaintiff to request a hearing. All the individual plaintiffs needed to and were represented by the PCS attorneys. Each individual had to put up some defense money, but the bulk was underwritten by the PCS because the individual cases became part and parcel of the federal lawsuit. In the federal law suit, several amended briefs were filed as the Commonwealth proceeded with more and more violations against the plaintiffs. At the hearing in federal court it was obvious to those who attended that the judge was prejudiced against the physicians. Moreover, the judge refused to consider any evidence of the Commonwealth's activities submitted in the third amended complaint at the October 1997 trial and ruled against the physicians on other grounds. The PCS lawyers appealed his decision to the U.S. Court of Appeals in Philadelphia. It must be pointed out that all the state agencies all along were represented not by the attorney general's office, as is standard procedure, but by the same politically well-connected, private law firm paid by the CAT Fund.

     The PCS worked closely with The Committee To Abolish The CAT Fund and with State Representative Samuel Rohrer to find a legislative solution to the CAT Fund problem. Representative Rohrer sponsored House Bill 1877, which called for the abolition of the CAT Fund. With the tremendous help of the Young Physicians Section of the PMS, the Pennsylvania Medical Society House of Delegates meeting at Hershey in October, 1997, endorsed HB 1877 and agreed to file an amicus curiae brief with the federal appeals court.

     The Committee To Abolish The CAT Fund considered its work done and decided to cease operation at the end of March 1998. The Committee donated its left-over funds to the Physicians' Cincinnatus Society.

     House Bill 1877 was never let out of committee by its chairman, Representative Nicholas A. Micozzie.

     To inform all the physicians in Pennsylvania about the case before the federal appeals court and to raise needed funds to pay outstanding legal fees, the PCS sent a two-page informational summary to 32,000 licensed physicians in Pennsylvania in July 1998.

     Following the severe bending, to say the least, of Rule 15 of the Federal Rules of Civil Procedures by the federal judge and let stand by the appeals court, further legal actions were planned.

     The federal judge ruled on November 6, 1996 that the physicians suspended by a hearing examiner could "freely practice" while they appeal the decision of the hearing examiner to the State Board of Medicine.

     The Commonwealth ignored the federal judge's November 6, 1996 ruling and began to prosecute physicians who practiced under the protection of this ruling during the appeals process, alleging they practiced without a license which is a felony offense. Judge William Yohn refused to enforce his own November 6, 1996 ruling, prompting our attorneys to file an appeal with the U.S. Court of Appeals in Philadelphia.

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THE CHALLENGE BEFORE US:

     Much needs to be done to protect physicians' rights to allow them to pursue their profession unfettered, especially in Pennsylvania. Not in any other state have medical societies worked at cross-purposes as much as they have in Pennsylvania. Not in any other state do we have physicians' medical licenses tied to $1,000,000 insurance at the threat of license revocation. In no other state have physicians and medical societies allowed themselves to be so decimated as they have in Pennsylvania. Since the Pennsylvania Medical Society has bargained away the right to demonstrate in Harrisburg for several years during negotiations which gave us Act 135 of 1996 (just as onerous as Act 111 of 1975), that option is not available to us from 1997 to 2001. We need to keep up the pressure in the courts. The Pennsylvania Supreme Court has ruled in the Pappas case that the HMOs are now liable for malpractice when they interfere with a provider's attempt to treat patients. By putting the HMOs in the line of fire where they belong, this court has pleased the trial lawyers while angering the HMOs. These two lobbies have blocked our attempts to eliminate the CAT Fund in recent years, but now the question becomes, "DON'T THE HMOs HAVE TO PAY INTO THE CAT FUND SYSTEM NOW THAT THE SUPREME COURT HAS DETERMINED THEY ARE LIABLE FOR MEDICAL MALPRACTICE LIKE PHYSICIANS AND HOSPITALS?

     There are many CAT Fund issues that impact on health care providers because the Fund is not insurance but a mandatory victim's compensation fund, according to the CAT Fund statute and Pennsylvania court rulings. All valid claims have to be paid from available agency funds whether the health care provider being sued has paid the surcharge or not. Do individual practitioners have to make up whatever the bankrupt Allegheny System operating eight hospitals in the Philadelphia area did not pay into the CAT Fund? Should the HMOs carry some of that burden? Unless we keep up the pressure and protect the rights of physicians, we will lose again and so will our patients. Physicians who cannot pay the surcharge should not lose their medical license and should receive the benefit of CAT Fund compensation for malpractice claims filed against them, when those physicians are not allowed to purchase their own excess medical liability insurance.

     The Physicians' Cincinnatus Society is urging physicians to join the Society. The annual dues are $100.00. We also urge the hospital medical staffs to make annual donations to the PCS so that we can effectively pursue our mission "to protect the rights of physicians and health care providers individually and collectively as they relate to their professional lives and to the practice of medicine in general."

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