Pennsylvania Record

Tuesday, September 17, 2019

Insurance, medical college officials tell Pa. Senate committee that current med-mal venue rules should stay intact

Lawsuits

By Nicholas Malfitano | Jun 27, 2019


HARRISBURG – Testimony hearings continued Wednesday within the Pennsylvania Senate’s Legislative Budget and Finance Committee (LBFC), featuring insurance and medical college representatives who say current medical malpractice venue rules should not be reversed.

The venue guidelines in question were brought into law subsequent to 2002’s Medical Care Availability and Reduction of Error (MCARE) Act and after a recommendation from the Interbranch Commission on Venue, which then ensured plaintiffs were only permitted to sue in the county where their alleged injury took place – a standard that currently remains in place.

A renewed debate over the rules governing venue for medical malpractice lawsuits in Pennsylvania was sparked by a letter written to the state Supreme Court late last year, asking the body to re-examine the issue.

It appears to have been the catalyst for a Supreme Court committee featuring five attorneys who work at firms that file medical malpractice lawsuits to propose reinstituting rules more favorable to plaintiffs.

Changing the rules would allow plaintiff attorneys to choose whichever eligible county they’d think would be likeliest to give out a jackpot. Philadelphia, for example, is known nationwide for its high-dollar jury verdicts.

In December, the state Supreme Court’s Civil Procedural Rules Committee proposed changes that would permit plaintiffs to sue in any venue where a medical defendant conducts business, reminiscent of the way such lawsuits were allowed prior to the MCARE Act’s passage and the Interbranch Commission's recommendation.

However, after the passage of Senate Resolution 20 in February, calling for a committee report on the effects of changing the current venue guidelines, the state Supreme Court decided to suspend any further action until that report is issued.

Insurance Group President Testifies Before Senate Committee

After an initial session held Tuesday, Samuel R. Marshall, president of the Insurance Federation of Pennsylvania, was the first individual to offer testimony during Wednesday’s hearings.

Marshall remarked that he appreciated an admonition from committee chairman Sen. Robert B. Mensch for a greater focus on quantitative data and to “get away from the rhetoric and perceptions, and to try and stick with the facts.”

“From our perspective, [the venue rule changes in 2003] have produced an accessible, fair, predictable and stable liability system. That’s the goal of any liability system, whether one is a plaintiff or a defendant. You want that liability system to be accessible, fair, predictable and stable,” Marshall said.

“The 2003 venue changes established a more predictable and stable system in which to resolve medical malpractice claims, nothing more and nothing less. They didn’t limit access to the courts, they didn’t impose new requirements for filing of medical malpractice claims, and they simply put restrictions on what was a statutorily-recognized problem of venue filing.”

Marshall referenced a report from actuarial and consulting firm Milliman, which said a rescission of the current venue rules would conservatively account for the following:

• A projected average increase of 15 percent for malpractice costs and insurance rates for physicians;

• A projected increase of 5 percent for malpractice costs and insurance rates for physicians in counties elsewhere in the state and up to 45 percent for customers in the counties surrounding Philadelphia, and;

• A projected increase of 17 percent for malpractice costs and insurance rates for hybrid specialist physicians like obstetrics/gynecology and general surgery.

Aside from suggested increased costs, Marshall indicated venue shopping would be the norm if the venue rules were reverted.

“Rescinding the venue rules is just going to bring back the exact problem that they were meant to solve in the first place, that of venue shopping,” Marshall said.

Medical College Representatives Provide Further Testimony

A trio of representatives from various medical colleges around Pennsylvania also appeared to share their perspectives with the Senate committee, beginning with Dr. Kevin P. Black, Interim Dean of Penn State University’s College of Medicine. Black has practiced medicine in Pennsylvania since 1993.

“I have lived through, firsthand, the impact of how a malpractice crisis impacts not only the care of our patients, but the educational experience of our medical students and residents,” Black said.

Black said in 2003, one year after the MCARE Act went into effect, a Harvard School of Public Health & Columbia Law School survey of physician specialists showed many of them reported increased wait times & distances for patients, along with revealing these results:

• 11 percent of physicians who planned to retire or definitely move their practice out of state;

• 29 percent of physicians who were very or somewhat likely to move practice out of state and;

• 42 percent of specialists who reduced or eliminated seeing high-risk patients from their practice – a trend referred to as “defensive medicine.”

Black said a reversed medical malpractice environment would help contribute to increased levels of physician stress and burnout, and ultimately be harmful to both undergraduate and graduate medical education in Pennsylvania, through a negative impact on the statewide health care system.

Dr. Patrick J. Brennan, Chief Medical Officer and Senior Vice-President for the University of Pennsylvania Healthsystem, also expressed opposition to any rescission of the venue rules.

“The proposed rule changes will have a deleterious effect on health care providers in Pennsylvania and ultimately, the patients they serve. By permitting venue in counties with no real connection to the underlying cause of action, the proposed changes will facilitate the forum shopping that contributed to the medical liability crisis which the legislature and the Governor’s Office sought to address via the MCARE Act in March 2002 – and to which the Supreme Court [of Pennsylvania] responded in 2003 with the adoption of the venue rule currently governing medical malpractice actions and the Certificate of Merit rule,” Brennan stated.

Brennan cited a Pennsylvania Medical Society report which explained the state’s major medical malpractice insurance providers increased their premium rates between 80 and 147 percent, from 1997 to 2001.

Brennan said the Supreme Court’s Civil Procedural Rules Committee’s justifications for reverting current the venue rules “simply do not warrant the adoption of the proposed rule changes and the associated impact on the health care industry.”

Michael Visnosky, Chairman of the Lake Erie College of Osteopathic Medicine, said it was “imperative for Pennsylvania to adopt and maintain rules and laws that encourage as many of those [future new] physicians to complete their graduate medical educations and establish their practices in Pennsylvania.”

According to Visnosky, new physicians should not be subjected to further obstacles, such as reversal of the current venues, in addition to those that they already confront, such as large amounts of student debt and medical malpractice insurance premiums.

“The venue rules adopted in 2002 and 2003 have served their purpose of confining the trial of an alleged medical malpractice claim to the county in which it occurred. Pennsylvania already has high medical liability costs, even with the reforms of 2002 and 2003 when compared to other states,” Visnosky stated.

“I encourage policymakers not to retreat on the venue reforms, and to consider additional opportunities to reduce medical liability costs in Pennsylvania. More work must be done to reduce the cost of medical malpractice insurance, and the venue rule should not be changed.”

Med-Mal Statistics Show Decrease In Lawsuits Since MCARE Act

Business and legal reform groups warn that a health care crisis in the state could return if pre-2002 venue guidelines are implemented by the Supreme Court of Pennsylvania. They say those former venue rules were to blame for high malpractice insurance costs that caused fewer health care options for patients.

Statistics provided by the AOPC show an overall decrease in medical malpractice claims filed statewide after the MCARE Act’s passage, in all but 11 of Pennsylvania’s counties.

Statewide overall, Pennsylvania went from seeing an average of 2,733 medical malpractice filings from 2000 to 2002, to having that number decrease 47 percent to 1,449 in 2017.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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