Major shift in medical malpractice rules in Pa. could help victims, but opponents fear the cost

This story originally appeared on Spotlight PA.

Pennsylvania’s highest court on Thursday took the controversial step of reversing a two-decade-old rule aimed at tamping down a crisis of doctors leaving the state because of high medical malpractice insurance costs.

In a highly-anticipated order, the state Supreme Court directed that plaintiffs can resume filing medical malpractice cases in any county in the state, rather than restricting them to filing in the county where the alleged medical harm occurred.

The change, which takes effect in January, is a huge win for trial lawyers in the state, who have long argued that limiting plaintiffs when it comes to the venue is unfair because juries in some counties, especially in more conservative rural areas, are seen as far less friendly to malpractice claims than others.

But critics of the decision say it will once again open the floodgates to plaintiff lawyers engaging in so-called venue-shopping, the practice of filing lawsuits in jurisdictions — with Philadelphia topping that list — where juries award larger payouts. Such an increase would then lead to skyrocketing insurance rates for care providers.

“Venue-shopping was found to be one of the key causes … in the liability crisis that doctors and hospitals faced in the late 1990s and early 2000s,” said Curt Schroder, a onetime state legislator who now is the executive director for the Pennsylvania Coalition for Civil Justice Reform, a statewide association representing the health care and business industries. “The danger here is that history will repeat itself.”

In making its decision, the high court assembled a committee to review the venue issue, as well as other changes. In its report, the committee said the majority of its 13 members could not find a justification for “the disparate treatment of victims of medical malpractice. Restricting them to filing suit in the county where they were harmed resulted in “less-than-full compensation … for their injuries.”

“Many of these patients have endured substantial injuries seriously lessening their quality of life in perpetuity, requiring permanent medical care and assistance in activities of daily living, and causing the patient and their families to endure lifelong pain, suffering, and loss of companionship,” the committee’s report stated. “These are serious, complicated, and tragic cases. There is no windfall; no one gains.”

The state’s trial lawyers have argued that forcing patients for the past 20 years to only file suit in the county in which the alleged medical mistake occurred was harmful to their chances of getting justice. Patients’ trials, the lawyers argued, were often held in counties where the hospital was a large, perhaps even the largest, employer, putting them at an automatic disadvantage before a jury.

“Plaintiffs in medical malpractice cases shouldn’t be limited by venue rules while the defendant enjoys a home-field advantage,” Kila Baldwin — president of the Pennsylvania Association for Justice, which represents trial lawyers in the state — said in a statement. “The new rule levels the playing field and will improve access to justice for all Pennsylvanians.”

But associations representing hospitals, doctors, and medical professionals fear the high court’s reversal could add to staffing and other stresses already facing medical systems.

In a statement, Andy Carter — chief executive of the Hospital and Healthsystem Association of Pennsylvania, a trade group — said the commonwealth’s health care system is “extremely fragile.”

“Putting more financial pressure on hospitals and making it even harder to attract direly needed clinicians to the commonwealth will have a devastating effect on health care,” Carter said.

Before 2003, there were no restrictions on where patients could sue, which led to a flood of cases being handled in Philadelphia’s courts.

Court statistics show that from 2000 to 2003, Philadelphia issued 407 of the 1,144 verdicts involving medical malpractice. Of those 407 cases, 58 ended with payouts between $1 million and $5 million; 16 had payouts between $5 million and $10 million; and 9 had payouts of more than $10 million.

Health professionals complained that malpractice insurance costs were so high — particularly in high-risk practices like obstetrics — that doctors could no longer afford to practice in the state.

The legislature attempted to tackle the problem through legislation — and made several changes — but the high court has the sole authority to change the venue rules.

In 2002, it agreed to restrict lawsuits to the counties where the alleged malpractice occurred. The number of malpractice suits dropped: in 2019, for instance, there were 78 verdicts, with 17 of those in Philadelphia.

But medical malpractice rules — and venue-shopping in particular — have continued to be a sore topic in the Capitol, particularly among Republicans.

When the high court first began considering reversing the venue rule in 2018, then-House Speaker Mike Turzai (R., Allegheny) said it was “an invitation to a constitutional fight” between the Supreme Court and the General Assembly.

On Thursday, spokespersons for Republican leaders in the House and Senate did not immediately offer comment on the rule reversal.

In the past two years, the Pennsylvania House Judiciary Committee, which has oversight of the courts, has advanced at least two constitutional amendments that would strip rulemaking power from the Supreme Court, including one that would give the legislature, not the court, the power to set the venue.

Rolling back the malpractice rule “could not only tip off a recurrence of the liability crisis that the current rule was established to resolve, but may also inflame conflict between the Judiciary and the General Assembly,” House Judiciary Committee Chair Rob Kauffman (R., Franklin) wrote in a memo on the proposed constitutional change to his colleagues.

In recent years, the Republican-controlled General Assembly has frequently butted heads with the liberal majority on the state Supreme Court, including threatening to impeach members over a 2018 ruling that tossed out a Republican-drawn congressional gerrymander before redrawing the map.

That frustration has since grown as the high court backed Democratic Gov. Tom Wolf’s pandemic powers, picked the state’s new congressional map, and rejected GOP arguments to overturn the state’s mail-in voting law.

To fight back, legislative Republicans have turned to constitutional amendments. One proposed amendment would elect the seven-member court by district rather than statewide, which would likely give an electoral advantage to Republicans to flip the high court.

However, neither this proposal nor any restricting the court’s rulemaking powers have fully passed.

Constitutional amendments must be approved by the state House and Senate twice, in two consecutive two-year sessions, before they are put to voters to either ratify or reject.