Proposed rule could upend Pa.’s medical liability insurance market

Pennsylvania is considering a return to legal practices that could harm our state’s medical liability environment and patients’ access to care.

Currently prohibited in medical liability cases, venue shopping — whereby lawyers can move cases to counties where the payouts are bigger — may be on the way back.

So what does this mean for Pennsylvania consumers? If past is prologue, we may well be in for growing physician shortages due to skyrocketing medical liability insurance costs that threaten the sustainability of crucial health care services.

Venue shopping contributed to Pennsylvania’s medical liability crisis during the 1990s. The 2002 ban on this practice was one of the reforms that helped stabilize the situation.

Forces are now pushing to reinstate venue shopping, saying that the current rules are denying patients the justice they deserve. These forces cite selected data showing that the number and size of verdicts has decreased.

This thinking fails to take into account hospitals’ commitment to health care quality improvements. Fewer successful liability cases could well be the result of better quality and safety, such as the lower rates of infections reported by the Centers for Disease Control and Prevention and others. Surely that’s a good thing.

As we consider this issue, let’s review (and so avoid repeating) how the crisis unfolded in the first place.

Depending on the specialty, physicians’ liability insurance costs increased anywhere from 80 percent to more than double (147 percent) during the four years between 1997 and 2001, according to the Pennsylvania Medical Society.

Unable to absorb these increases, doctors retired or fled the state. Newly minted physicians completing their training here moved elsewhere to practice.

The Philadelphia Inquirer and others documented the crisis. During 2001, liability insurance rates nearly doubled for 12 orthopedic surgeons at Frankford Hospital’s three southeast Pennsylvania facilities. All 12 surgeons stopped practicing.

OB/GYNs also were hit hard. Hospital obstetrical units closed, due in part to medical liability costs. Between 1999 and 2005, the number of OB units in Pennsylvania hospitals fell 17 percent.

The number of physicians actively practicing in our state decreased nearly 11 percent between 1997 and 2000, according to data from Pennsylvania’s Medical Catastrophic Loss Benefits Continuation Fund.

Lawmakers and the state Supreme Court took action, working together to solve the crisis. They put in place several reforms, including the prohibition of “venue shopping” for medical liability cases.

Today, Pennsylvania’s medical liability insurance market is far less volatile. A bigger share of liability cases is being tried by a jury of peers, in the county where the “cause of action” took place.

During the two years prior to the ban on venue shopping, 44 percent of Pennsylvania’s medical liability cases were filed in Philadelphia, with its history of large verdicts. During 2017, only 28 percent of cases were filed there.

In other words, Pennsylvania has been there, done that — and successfully addressed the issue. If the fix is working, don’t break it.