HARRISBURG – A group of health care officials testified before a complement of Republican state congressional representatives on Monday that a recent Supreme Court of Pennsylvania committee decision to allow plaintiffs greater flexibility in where to file medical malpractice cases, may have the ability to create another medical liability crisis statewide.
Providing testimony to the House Republican Policy Committee were Dr. Michael R. Ripchinski, Chief Physician Executive, Penn Medicine Lancaster General Health, for the Hospital and Healthsystem Association of Pennsylvania; Zachary Shamberg, President and CEO, Pennsylvania Healthcare Association; Dr. Wilson Jackson III, Jackson Siegelbaum Gastroenterology, for the Pennsylvania Medical Society; and Jonathan Greer, President, Insurance Federation of Pennsylvania.
According to Shamberg, the return of the venue rule “will force long-term providers to settle lawsuits and will take money away from residents”, while Jackson testified that the state Supreme Court committee’s decision “will cause increased physician burnout and will cause specialty physicians to stop performing high-risk procedures.” Greer offered that the decision means “significantly higher malpractice insurance premiums.”
The Supreme Court of Pennsylvania’s Civil Procedural Rules Committee recent move to change rules placing venue guidelines on medical malpractice liability cases, which had been in place for two decades, was cheered by personal injury attorneys and criticized by health care and business interests.
The rules undo a change which went into effect in 2002, which stated that plaintiffs could only file medical malpractice lawsuits in the counties where they received their injuries. Now, with the new rules approved by the state Supreme Court, set to go into effect in 2023, plaintiffs will be able to sue medical defendants in counties where they do business or have established ties.
Curt Schroder, Executive Director of the Pennsylvania Coalition for Civil Justice Reform, commented on both the decision and testimony from Monday’s hearing.
“Medical and legal experts from across Pennsylvania agree that a return to forum shopping will have dire consequences for the accessibility of health care in this state. The testimony from today’s hearing echoes a recent independent study that found that a rule reversal would lead to a substantial increase in premiums throughout the Commonwealth – raising health care costs and threatening access to crucial services as a result,” Schroder said.
“We thank Policy Committee Chairman Martin Causer and the committee for working to shine a light on this important issue and encourage the General Assembly to take action to stop venue shopping in the Commonwealth.”
The Supreme Court of Pennsylvania, in its adoption report explaining the ruling and the process by which it came to be, disagreed with opponents of the measure.
“It has been postulated that eliminating the special venue mandate for medical practice actions will cause health care providers, in general, to leave Pennsylvania. Insofar as negligent providers are held accountable in a court of law for their acts and exit Pennsylvania as an uninsurable risk, that outcome is preferred to protect patients within this Commonwealth from further harm. With utmost respect, it is suggested that efforts are better focused on reducing the occurrence of negligence rather than limit liability after the negligence,” the Court said.
“In sum, a majority of the Committee did not find justification for the continued disparate treatment of victims of medical malpractice as it pertains to venue. The impact of the restrictive venue rules was such that the savings accruing to defendants represents less-than-full compensation to plaintiffs for their injuries. Instead, a majority concluded that medical malpractice claims should be subject to the same venue rules applicable to other professional liability claims and tort claims in general. Likewise, defendants in medical malpractice actions can avail themselves of procedural mechanisms to seek a change in venue that are available to all other defendants in other types of actions.”
History of Med-Mal Venue Rules in Pennsylvania
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 in the late 1990s and early 2000s.
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. Its advocates affirm that the change led to a significant drop in medical malpractice litigation across the state.
However, 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. 4 “Judicial Hellhole” – a designation given by a tort reform group that considers whether businesses get a fair shake in certain jurisdictions.
But 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.
That report was issued in February 2020, though it did not make any clear-cut recommendation as to whether the current medical malpractice venue rules should or should not be changed based on statewide trends in insurance rates, health care access and the number of lawsuits filed.
Since the issuance of the report, that was followed by a controversial ruling from the Supreme Court of Pennsylvania in December 2021 in Lageman v. Zepp Et.Al, which provided that medical malpractice case juries can consider both direct and circumstantial evidence, under the res ipsa loquitur doctrine.
The doctrine allows for assumption of injuries as a result of negligence, in circumstances where such plaintiffs can prove that the doctrine is but one way to determine liability.
Rep. Rob Kauffman (R–Franklin County) also brought forward House Bill 2660, which sought to clarify and cement in the Pennsylvania Constitution under Article V, Section 10(c) that the General Assembly may establish the venue of a civil lawsuit by statute. The measure remains pending, though even if it were to be passed, the earliest it could be effectuated is the year 2025.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com