Pennsylvania Record

Tuesday, April 7, 2020

A year of study and Senate still unsure about changing rules for medical-malpractice lawsuits

Lawsuits

By Nicholas Malfitano | Feb 5, 2020

Medical malpractice 03

HARRISBURG – After nearly a full of year of study, a bipartisan Pennsylvania Senate Legislative Budget and Finance Committee (LBFC) report released Monday on the effects of changing current medical malpractice litigation venue rules came to no specific conclusion on the potential impacts of such a proposal.

The 200-page report looks at what effects changing med-mal litigation venue rules may have on rates for liability insurance, access to health care and the incidence of med-mal lawsuit filings across Pennsylvania.

Significantly, the report did not make any clear-cut recommendation as to whether the current medical malpractice venue rules should or should not be changed based on the above factors and others – and further, cited that variables “outside the scope” of the study may be responsible for statewide trends in insurance rates, health care access and the number of lawsuits filed.  

The report originated from a state Senate resolution passed last year that called for on-the-record research and discussion of issues connected to a proposed change of venue rules concerning medical malpractice litigation.

Business and legal reform groups have warned that a health care crisis in the state could return if pre-Medical Care Availability and Reduction of Error (MCARE) Act 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.

The Pennsylvania Coalition for Civil Justice Reform, The Pennsylvania Medical Society, The Hospital and Healthsystems Association of Pennsylvania and the Pennsylvania Health Care Association issued a joint statement on the report’s release.

“As organizations directly impacted by and seriously concerned about this issue, we are grateful for the LBFC’s work. We agree with the report’s finding that the medical liability climate has been stable since the current venue rule went into effect. This fact alone supports allowing the current venue rule to remain in place. The report does nothing to further the case of those wanting to return to venue shopping,” the groups said.

“A return to old rules would have profound, real-world consequences on the delivery of health care in Pennsylvania, including increased liability premiums for doctors and hospitals, which in return will impact the availability of health care services for people who need them. Such higher costs and less care will only benefit plaintiffs’ lawyers. Patients in need of care, particularly in rural communities, will lose.”

The organizations believe that while patients involved in negligence cases deserve compensation, the current venue rules “provide open access to the court system and competent juries, no matter if they are from Potter County or Philadelphia.”

“A return to venue shopping risks a return to the medical liability health care crisis. There is much at stake. We now urge the Civil Procedural Rules Committee to uphold the venue rule as adopted to prevent another medical liability crisis in our state,” the groups collectively stated.

In contrast, plaintiff advocates felt the time for the venue rules to be changed is now.

“The LBFC report reiterates what we already knew – the cumulative effect of the nearly dozen ‘tort reform’ measures that were adopted seventeen years ago is that fifty-percent fewer Pennsylvanians who suffered medical malpractice have been able to access justice,” Sud Patel, Esq., President of the Pennsylvania Association for Justice, said.

“Contrary to what insurers and hospital groups would have you believe, this decrease in access to justice is not cause for celebration, especially when juxtaposed against the terrifying fact that medical errors are occurring at an alarmingly high and steadily increasing rate. Medical malpractice is the third leading cause of death in the United States. We did not need another study telling us what we already knew, we needed action that improved public safety.”

Seconding Patel’s sentiments was Paul Lagnese, PAJ’s President-elect.

“It’s sad that we wasted a year waiting for a report to say two things that we already knew. First, tort reform hasn’t made Pennsylvanians safer. Second, the report reiterated the fact that rules of court, such as the venue rule, are the purview of the Supreme Court of Pennsylvania. We hope that our Supreme Court will now finally adopt the Civil Procedural Rules Committee’s recommendation to reverse this unfair rule, a rule that we know has never been warranted. This study demonstrates that loud and clear,” Lagnese said.

History of Med-Mal Venue Rules

The current medical malpractice venue guidelines in question were brought into law subsequent to 2002’s 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 in 2018, 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 venue rules more favorable to plaintiffs, allowing them to sue wherever 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.

Changing the rules would allow plaintiffs’ 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 and was recently named the No. 1 “Judicial Hellhole” – a designation given by a tort reform group that considers whether businesses get a fair shake in certain jurisdictions.

However, after the passage of Senate Resolution 20 in February 2019, calling for a committee report on the effects of changing the current venue guidelines to be written and completed before the end of by the end of that year, the state Supreme Court decided to suspend any further action until the report was issued.

Pennsylvania Senate Judiciary Leader Lisa Baker said it was “vital” to have discussion of these issues on the record.

“There was substantial alarm inside and outside the legislature when a proposed rule suddenly materialized that would have undone what was so carefully-crafted protections for venue shopping that Sen. [Robert B.] Mensch outlined, and could have been finalized without any source of public hearings,” Baker said.

Baker requested the Senate committee members deal with the issues raised by the Civil Procedural Rules Committee through fair gathering and interpretation of information and statistics, plus “reliable representation of the cases filed, the outcomes of judgments and settlements, physician population and distribution, provider performance, patient safety and insurance affordability.”

The LBFC held a two-day series of hearings in Harrisburg last June, discussing the impact that reverting current medical malpractice litigation venue rules could have on citizens’ access to health care.

Both plaintiffs attorneys and those representing the interests of health care providers were given the opportunity to explain their rationales for why the current medical malpractice litigation venue rules should or should not change.

The plaintiffs bar argued that citizens were being denied access to justice under the current venue rule system, whereas health care providers countered that changing the venue rules would ultimately lead to a return of the medical liability straits Pennsylvania found itself in during the early 2000’s.

Statistics provided by the AOPC last year showed 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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