An obscure committee that advises the Pennsylvania Supreme Court, which now has a strong Democratic majority, is considering a proposal that medical professionals fear could lead to a surge in malpractice lawsuits in Philadelphia, where juries have a history of awarding hefty verdicts.
The proposal would undo an early 2000s rule that required medical malpractice lawsuits to be filed in the county where the alleged injury occurred.
The existing rule was part of a package of changes in 2002 and 2003 — including a requirement that plaintiffs obtain a certificate of merit for their injury — credited with a steep decline in the number of medical malpractice lawsuits and large jury verdicts statewide, but particularly in Philadelphia. The changes also helped stabilize the state’s medical malpractice insurance market.
“If you go back to the way it was, you will see more cases brought in Philadelphia and you will probably see more cases brought in total and the value of those cases will go up," Samuel R. Marshall, chief executive of the Insurance Federation of Pennsylvania, said Thursday. "That will make malpractice insurance more expensive, not just for the OB/GYN in Montgomery County. It’s going to raise rates across the board.”
From 2000 through 2003, an average of 1,204 medical malpractice claims were filed in Philadelphia against hospitals, doctors, and nursing homes. Lawyers filed an annual average of 416 claims in the city in the ten years ended in 2017, state data show. The number of jury verdicts in the city worth at least $1 million fell to 13 from 2015 to 2017, compared to 73 from 2000 through July 2003.
The average Pennsylvania based OB/GYN paid upwards of $130,000 for malpractice coverage in 2003, a time when physicians “were in a state of crisis over affordability and availability of medical malpractice insurance,” whereas today the average is closer to $50,000, said Nick Gaudiosi, an independent consultant to the health-care industry and former medical professional liability executive.
The proposed rule change would allow victims to file lawsuits in any county where the defendant does business. That means, for example, that the University of Pennsylvania Health System could be sued in Philadelphia for an incident at Lancaster General Hospital, which Penn acquired in 2015.
But a Philadelphia plaintiff’s attorney said health-care providers, insurers, and defense attorneys are overstating the likely impact. The rule change would simply return the state to the norm that exists for other types of personal injury and “as it always was in the common law of early England and the early law of this country,” said Martin S. Kardon, of Kanter, Bernstein & Kardon P.C.
“With the certificate of merit requirements still in place, health-care providers needn’t fear baseless or frivolous cases and should focus their attentions on providing care consistent with the standards set by their profession and specialties. That will protect them from facing litigation for causing avoidable harm to their patients,” Kardon said.
Court officials did not say Thursday who proposed the rule change or what specific factors the 15-member Civil Procedural Rules Committee would use to evaluate the rule, which was published in the Pennsylvania Bulletin on Dec. 22, but only started getting attention last week.
Such proposals can come from members of the rules committee, justices, or the public, including attorneys. “The amount of analysis depends on the nature of the proposed rule and the issues it raises," court spokesperson Stacey Witalec said.
Committee chairman David L. Kwass, of Saltz Mongeluzzi Barrett & Bendesky P.C. in Philadelphia, said he could not comment. The law firm describes itself as “one of the leading Philadelphia-based medical malpractice law firms” that “has successfully handled hundreds of malpractice cases” on its website.
The public comment period runs through Feb. 22. It is not clear when the committee would make a decision or if the Supreme Court justices would accept the proposal.
Gaudiosi, the consultant and former medical malpractice insurance executive, said similar efforts are happening in other states where “sweeping medical liability reforms” were passed. “Generally, the plaintiffs bar never lets up on trying to overturn the reforms, but their success or failure depends on the political landscape,” he said.