Category Archives: Pennsylvania

December 2017 Newsletter

Year-end report sheds light on “Judicial Hellholes” The American Tort Reform Association (ATRA) end-of-year “Judicial Hellholes” report offers a public glimpse at the most unfriendly jurisdictions for those defending themselves against civil litigation, including medical liability lawsuits. At the top of the list this year was Florida, where once-strong medical liability reforms have been continuously rolled back at the expense of patients seeking affordable and accessible care. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes…” said American Tort Reform Association president Tiger Joyce. Also high on the list was St. Louis, where “antiquated rules have made it a favorite of personal-injury lawyers shopping for big-money verdicts” resulting in $300 million in awards since 2015. However, recent changes in state government, including a governor in support of changes to the liability system, do hold promise for much-needed reform in the coming year. To read more about ATRA’s “Judicial Hellholes” executive summary and report on the where physicians and defendants fare the worst when it comes to…

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Top cases show physicians had a forceful ally in the courts

One thing physicians from Florida to Hawaii had in common in 2017 was that the Litigation Center of the American Medical Association and State Medical Societies had their backs. The Litigation Center was involved in legal battles that helped prevent an insurance mega-merger, protected physicians’ right to free speech, and fought back on multiple fronts against attempts to sidestep or peel back established state liability reforms. But it was a case involving the staff at a hospital in rural California that may have attracted the most attention. Case signaled threat to end medical staff independence in California. In Tulare Regional Medical Center Medical Staff v. Tulare Local Healthcare District et al, the Litigation Center provided significant legal and financial support after the hospital’s board of directors voted to terminate the medical staff organization, remove elected medical staff officers, install a slate of appointed officers and approve new medical staff bylaws and rules without staff input. “This case serves as an existential threat to independent hospital medical staffs,” said Long Do, California Medical Association (CMA) legal counsel and director of litigation. Just before closing arguments were scheduled in October, Tulare filed for Chapter 9 bankruptcy. As part the process, the hospital…

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High Court’s Contempt for Lawmakers’ Authority, Lawsuit Rackets Place Florida atop Latest ‘Judicial Hellholes’ List

WASHINGTON, D.C., December 5, 2017 – The American Tort Reform Foundation issued its 2017-2018 Judicial Hellholes® report today, naming courts in Florida, California, Missouri, New York, Pennsylvania, New Jersey, Illinois and Louisiana among the nation’s “most unfair” in their handling of civil litigation. “With both this annual report and a year-round website, our Judicial Hellholes program since 2002 has been documenting troubling developments in jurisdictions where civil court judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants,” began American Tort Reform Association president Tiger Joyce. “This year, thanks to a state high court majority’s barely contained contempt for the policy-making authority of the legislative and executive branches of government, and a notoriously aggressive and sometimes lawless plaintiffs’ bar, Florida earns the ignominious #1 ranking among eight Judicial Hellholes, even as authorities have begun to crack down on some of the lawsuit industry’s most obviously fraudulent rackets. “Ranked #2 is perennial hellhole California, where lawmakers, prosecutors and plaintiff-friendly judges inexorably expand civil liability at the expense of businesses, jobseekers and those desperately in need of affordable housing,” Joyce explained. “The good news is the U.S. Supreme Court in June reversed a…

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Liability suit seeks change to informed consent

A case before the Supreme Court of Pennsylvania could have major implications on how physicians obtain informed consent prior to a surgery. At stake in Shinal v. Toms, is whether a patient’s informed consent to surgery can be predicated on information provided in part by a physician’s assistant, as opposed to just the physician. Both the Medical Care Availability and Reduction of Error Act (MCARE) and common law have made it the physician’s duty to see that the proper information is conveyed, but the question is whether delegating tasks to qualified professionals is also within the bounds of the law and common medical practice. How the case unfolded In 2004, Megan Shinal underwent surgery to remove a tumor, but it regrew and by 2008 she was experiencing severe headaches and was referred to Steven A. Toms, MD, for a second surgery. This type of surgery—the removal of a craniopharyngioma, a very serious and recurrent rumor located deep in the base of the brain—is one of the most complex surgeries in all of neurosurgery. For this reason, there were numerous important surgical decisions to be made, some by the surgeon and some collaboratively with the patient. The major decisions were which…

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June 2016 Newsletter

Republican Health Care Task Force Offers Medical Liability Solutions for Patients, Physicians New health care reforms, including medical liability proposals, were introduced last week by the Republican Health Care Task Force and formally kicked off initiatives that will guide the legislative activities in a new Congress, with a new administration. Led by House Speaker Paul Ryan, the health care reform framework and proposal offered by Republicans aims to empower patients, make the health system more accessible and affordable, and spur medical innovation. “We know that comprehensive medical liability reform that includes caps on non-economic damages will improve patients’ access to quality care while reducing the overall cost of health care in America,” the report states. “Our plan will include liability reform that includes caps on non-economic damage awards, ensuring plaintiffs can recover full economic damages and that patients will not have their damages taken away by excessive lawyer contingency fees.” These reforms have proven effective in states like California and Texas, where patients have greater access to critical care, and health care costs and liability premiums remain affordable. “The HCLA will work with Members of Congress on both sides of the aisle, as well as the new administration, to bring…

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As malpractice verdicts drop in Pennsylvania, officials disagree on implications

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…

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Medical malpractice suits drop in Pennsylvania

The number of medical malpractice case filings statewide has dropped to its lowest point in a decade and a half of tracking. Plaintiffs’ lawyers filed 1,463 such cases in Pennsylvania’s civil courts in 2014, according to the Administrative Office of Pennsylvania Courts. That was about half as many as in 2002, before two significant rule changes made by the state Supreme Court. In an effort to weed out frivolous suits, the high court required suits be vetted by medical professionals before being allowed to proceed. It also demanded that a suit be filed in the county where the cause of action took place, which prevented so-called venue-shopping. “Frivolous lawsuits pull health professionals out of serving patients,” said Charles Moran, spokesman for the Pennsylvania Medical Society, which represents doctors. “They can be expensive and time consuming. That money and time is better spent treating patients.” The decline in medical malpractice case filings statewide has been largely driven by Philadelphia, the state’s judicial district with the largest caseload, where the number of medical malpractice case filings last year was a fraction of what it was in 2000. Statewide, 127 medical malpractice cases were resolved through jury verdicts last year, compared with 326…

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Numbers are down, but Phila. is still a haven for medical malpractice suits

After all the hand-wringing and anguish over out-of- state firms flocking to file lawsuits in Philadelphia – the law firms you see advertising on late-night television – is Philadelphia still the notorious plaintiffs’ paradise of common lore? It all depends on your idea of civil litigation bliss. A look at medical malpractice awards is revealing. There is no question: Philadelphia remains the most favorable jurisdiction in Pennsylvania for lawyers seeking big payoffs, a maddening fact to the many physicians and hospitals here. And new data compiled by the Pennsylvania Supreme Court make that point incontrovertibly. Although Philadelphia accounts for only 12 percent of the state’s population, 40 percent of medical malpractice trials resulting in verdicts in 2013 took place in the city. Not only are a disproportionate number of cases tried here, but the odds are better for plaintiffs. Philadelphia plaintiffs won 45 percent of cases tried to verdict in 2013, more than any other jurisdiction. In Bucks County, there were only four medical malpractice cases resulting in verdicts, and the plaintiffs won none. In Montgomery, the results were better for plaintiffs; 19 percent of cases went their way, but here again they trailed Philadelphia significantly. In more than half…

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A Case for Malpractice Reform

The medical malpractice process was designed to allow fair and just compensation when a patient is harmed through negligent health care; it is an important part of our health care system. Ideally, it would function smoothly, bringing prompt justice to those who have been wronged. Unfortunately, that is not the case. The system is inefficient, costly and plagued with abuse, often punishing providers who have done no wrong. The consequences are an adversarial environment with reduced and delayed payments (five years is not uncommon), an increase in the cost of medicine, defensive medicine (unnecessary care which is burdensome to scarce resources), and decreased access to health care, especially in fields such as pediatrics, obstetrics, and neurosurgery, where annual malpractice premiums can reach $200,000. In an ideal world, patients should have ready access to compensation when malpractice has been committed, but the current system functions more like a lottery. Thousands of cases are filed, in hopes the practitioner will settle to avoid going to court. Most of these cases never reach the jury, but still cause harm to the system. Of the cases that do reach the court, most are found in favor of the defendant, but vindication comes at great…

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New York is the Clear Leader in Medical Malpractice Awards

Medical malpractice lawsuits paid out more in New York last year than in any other state — and by a huge margin. Awards in malpractice lawsuits paid out roughly $690 million in New York last year, nearly twice that of second-ranked Pennsylvania, which saw $357 million in payouts, according to government data compiled by Jeremy Gower of Diederich Healthcare, a medical malpractice insurer. New York is also the clear leader on per capita payouts, averaging $39 per resident with Pennsylvania trailing at $25 per resident. Malpractice lawsuits have long prompted controversy among policymakers. Some argue they drive up insurance rates and make it difficult to be a physician while others say they’re necessary to protect consumers. This past Thursday, the Florida Supreme Court said the state legislature manufactured an “alleged medical malpractice crisis” and threw out limits on payouts in some wrongful death lawsuits, according to the Miami Herald. And lawyers and industry groups are collecting signatures to get a measure to increase the cap on the ballot in California. Caps on malpractice awards have been overturned in at least nine other states, according to year-old data from PIAA, an insurance industry trade association. And only 15 states lack caps…

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