As malpractice verdicts drop in Pennsylvania, officials disagree on implications

By Pittsburgh Post-Gazette National, News, Pennsylvania Source

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  • June 17, 2016

Medical malpractice jury verdicts hit a 15-year low statewide last year, a sign the medical community sees as welcome relief from escalating insurance premiums but lawyers view as evidence that injured patients are being unfairly denied an opportunity for redress.

In 2004, Pennsylvania juries issued verdicts in 449 medical malpractice cases, with 78.4 percent of those verdicts in favor of the defendant; in 2015, the numbers were 101 verdicts, with 78.2 percent favoring the hospital or medical professional. Similarly, Allegheny County saw its verdict numbers go from 49 in 2004, with 73.4 percent favoring the defense, while all 10 verdicts in 2015 favored the defendant.

What’s going on? Legal and medical officials could hardly see the matter more differently.

“I think the medical community, and insurers as well, have done a tremendous job of creating a jury bias toward these types of cases,” said Lawrence M. Kelly, president of the Western Pennsylvania Trial Lawyers Association and partner at the Luxenberg Garbett Kelly & George law firm in New Castle, Lawrence County.

By painting scenarios in which physicians could abandon whole towns over liability concerns, he said, they’ve persuaded jurors and legislators to construct roadblocks to filing.

“The problem is that hospital preventable errors are now the third-leading cause of death in the United States,” he continued, citing a widely circulated patient safety study by two Johns Hopkins researchers.

“The medical profession should spend more time worrying about the 440,000 preventable deaths and a little less time on worrying about whether or not the number of med mal verdicts has reached a 15-year low.”

John Krah, executive director of the Allegheny County Medical Society, said he believes the preventable death data tend to get overblown, adding that “physicians and hospitals have spent a lot of time trying to improve the system and avoid errors.”

And the prospect of doctors leaving rural areas is quite real, he said, but the impetus has more to do with rising liability insurance premiums rather than actual lawsuits.

“They were getting 30-50 percent rate increases per year. They just couldn’t sustain it,” Mr. Krah said. “Even if you didn’t have claims, you were paying more.”

Court records show that it’s clearly become harder to sue, or win, medical malpractice cases that go to verdict as statewide medical malpractice verdicts reached a 15-year low in 2015. (While the state also collects data on non-jury verdicts, nearly all cases are heard before a jury.)

Verdict cases overall represent less than 9 percent of how medical liability cases are resolved, according to Rockville, Md.-based Physician Insurers Association of America, with the majority dropped or dismissed. Arbitration and other dispute resolution alternatives also come into play, but precise numbers are not known.

As for verdict cases, the period around 2004 is seen as key due to a couple of major changes in Pennsylvania. One was a requirement to obtain a “certificate of merit” from a medical expert who agrees the patient has a legitimate case before it can go forward. A second rule requires that lawsuits be filed in the county where the alleged malpractice occurred.

“Clearly, plaintiffs’ attorneys were seeking friendly court venues in Pennsylvania, and that was primarily Philadelphia,” Mr. Krah said. “If you could get your case moved to Philadelphia, your chances of winning — and winning a substantial amount — were greatly increased.”

With courts already overburdened, he added, “I think most people would think it is not an unreasonable requirement that there be some verification” such obtaining a certificate of merit.

Mr. Kelly disagrees. “With the new certificate of merit rule, it has become much more expensive to proceed with a medical malpractice case” because the plaintiff must hire experts to show the case is valid before getting a hearing in court. For some, the financial hurdle is too high.

“The problem that we face is, if juries will not hold the medical profession responsible for preventable medical errors, those errors are going to continue.”

Tom Baker, a professor of law and health sciences at the University of Pennsylvania Law School, authored a 2005 book “The Medical Malpractice Myth” that maintained that only a small proportion of injured patients filed lawsuits.

“The problem was not too many medical malpractice lawsuits but rather too much medical malpractice,” he said this week. With the number of verdicts declining without evidence of a corresponding decline in malpractice, Mr. Baker said, “That means that medical malpractice claims compensate an even smaller proportion of injured patients.”

He added, “I can’t see any basis for thinking there is justification for making it even harder for injured patients to seek redress.”

Mr. Krah agrees with Mr. Baker that injured parties are not well served under the current system but said it is because a majority of medical malpractice dollars get spent on legal fees and administrative costs.

“If we’re consuming that much money on the process, then we’re not doing an effective job of compensating patients who have been injured,” he said. “I don’t see how having more litigation is going to address this any better.”