Dire predictions follow Pa. Supreme Court’s loosening of medical malpractice filing rules

‘The Supreme Court’s reversal of this venue rule will once again invite the unnecessary return of ‘junk lawsuits,’’ a member of the Pennsylvania Medical Society said

By: - October 20, 2022 9:19 am

(Image by Sasint, via Pixabay)

(*This article was updated at 10:32 a.m., Thursday, 10/20/2022, to correct a spelling error and add the effective date of the rule change.)

Echoes of a debate more than two decades old are ringing out in the Pennsylvania Capitol over the rights of patients to sue for medical malpractice and the effects of such litigation on health care providers.

In August, the Pennsylvania Supreme Court lifted a 20-year-old restriction on where patients who claim they were injured by doctors could file lawsuits.

Last month, House Republicans heard dire predictions of skyrocketing insurance rates and diminished access to health care as result of the rule change. One state lawmaker said he aims to reverse the Supreme Court’s action.

Legal experts warn the legislation faces a constitutional obstacle, and they say the rule reversal alone won’t expose doctors to baseless legal claims.

Put in place in 2002 as part of a package of legislative and judicial responses to what health care providers said was a crisis driven by frivolous lawsuits and jackpot verdicts, the rule required lawyers to file medical malpractice suits in the counties where the claims arose.

It was intended to stop a practice called venue shopping, in which litigants file suits in counties where juries are perceived to be more plaintiff-friendly and return larger verdicts.

Hospitals and doctors said such awards in the late 1990s and early 2000s were driving up insurance premiums to the point that doctors in high-risk disciplines could no longer afford to practice in Pennsylvania.

Health care industry stakeholders are now warning the Supreme Court’s rescission of the rule could again lead to disruptions in health care in Pennsylvania. 

Rural areas could be especially hard-hit as small town doctors face big-city insurance rates and decide the cost of defending against potential lawsuits isn’t worth it, leaders in the medical profession say.

“After 20 years of rebuilding Pennsylvania’s physician workforce, and creating a better liability market in Pennsylvania, the Supreme Court’s reversal of this venue rule will once again invite the unnecessary return of ‘junk lawsuits’ and personal injury lawyers lining their pockets … to the detriment of a steady and safe health care environment,” Dr. Wilson Jackson III, the president elect of the Pennsylvania Medical Society, told the House Republican Policy Committee during a hearing last month.

Dr. Michael Ripchinski, chief physician executive for Penn Medicine Lancaster General Health, told the House panel that an actuarial analysis commissioned by the Senate Judiciary Committee forecasted that hospitals in Lancaster County could see insurance premiums increase between 36 percent and 73 percent as a result of the rule change. 

Doctors would see even larger premium increases of between 41percent and 82 percent, the analysis showed.

“This rule change threatens the continued availability and affordability of professional liability insurance, the training and retention of new physicians, and full access to quality health care for residents of Pennsylvania,” Ripchinski said.

Last week, state Rep. Toren Ecker, R-Adams, proposed legislation to statutorily bar venue shopping by giving the court of common pleas in the county where a medical incident occurs exclusive subject matter jurisdiction over malpractice claims.

With local hospitals and physician groups affiliated with large health care systems such as University of Pittsburgh Medical Center and University of Pennsylvania Health System, doctors in his district could face medical liability trials before juries in Philadelphia or Pittsburgh.

Under the less restrictive venue rule that takes effect Jan. 1, plaintiffs need only show that a health care provider conducted business in a given county to have the right to use that county’s courts. The Supreme Court said it would review the effect of the rule change after two years.

“From my perspective juries should be juries of our peers,” Ecker said. “That’s why I believe keeping these things local … in the community where you live and where the incident happened.”

Ecker said he expects additional bills on the subject to be introduced in the 2023-24 session.

Legal experts said legislation such as Eckers’ faces possibly insurmountable constitutional hurdles.  

When lawmakers and the courts tackled the issue of medical liability reform in the early 2000s, the result was the Medical Care Availability and Reduction of Error Act. The law established an independent Patient Safety Authority, a Patient Safety Trust Fund to pay malpractice claims not covered by doctors’ insurance, and they enacted numerous reforms in licensure, regulation and insurance. 

It also created the Interbranch Commission on Venue, which recommended steps to address the issue of venue shopping in medical malpractice cases. As a result, the Supreme Court enacted the rule that it rescinded in August. The Legislature also passed a law with the same rule requiring  medical liability claims to be heard in the county where the injury occurred. 

The state’s Commonwealth Court declared the law to be unconstitutional because it infringed on the judicial branch’s exclusive authority to make procedural rules, such where cases may be filed. Any legislation with a similar goal is likely to reach the same end, Kila Baldwin, president of the Pennsylvania Association for Justice, which represents trial lawyers, said

“The legislature quite frankly doesn’t have the constitutional authority to do what they are doing right now,” Baldwin said. “It’s going to tie up resources in the state by doing something they don’t have the authority to do, and I’m not sure why they’d waste those resources.”

Ecker responded to the criticism by saying that the legislation will focus on jurisdiction – what kinds of cases a court can hear – which the General Assembly can legislate, rather than the  venue – where cases can be heard – which is the judiciary’s purview.

Baldwin said suing hospitals in the cities where their corporate headquarters are makes sense for a number of reasons. The policies and procedures that may have contributed to a patient’s  injury are often set by the corporate parent of a hospital or practice group. 

Larger court systems such as Philadelphia and Allegheny County are often better equipped to handle complicated cases to reach a timely conclusion, which is in the interest of all parties, Kila said. Health care stakeholders say holding court proceedings in counties hours away from a doctor’s hospital or practice means they aren’t available to see patients. 

Chip Becker, an attorney with the Philadelphia law firm Kline and Specter, said it’s unfair to treat plaintiffs with claims against physicians any differently than those with claims against other professionals, such as accountants and lawyers. 

“The Supreme Court’s decision puts everyone on the same plane,” Becker said.

Becker said there are still robust protections against frivolous claims without the venue rule in place. Another outcome of the 2002 reforms was the Supreme Court’s Certificate of Merit rule. It requires professional malpractice claims to be accompanied by a statement from an expert licensed in the appropriate field stating that the subject of a claim didn’t adhere to professional standards. 

“It was hard to win a medical malpractice case under the rules that existed before … and it still is,” Becker said.

Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Peter Hall
Peter Hall

Peter Hall has been a journalist in Pennsylvania and New Jersey for more than 20 years, most recently covering criminal justice and legal affairs for The Morning Call in Allentown. His career at local newspapers and legal business publications has taken him from school board meetings to the Pennsylvania Supreme Court and many points of interest between. He earned a degree in journalism from Susquehanna University.