Category Archives: Pennsylvania

February 2020 Newsletter

The year ahead for patients and physicians Advocating for physicians in over 60 active lawsuits, the Litigation Center of the American Medical Association and State Medical Societies has a busy year ahead in support of access to care. Brian D. Vandenberg, senior vice president and general counsel at the American Medical Association (AMA), recently outlined the priorities for 2020 in an interview with American Medical News. On the docket for the AMA is the rise in hybrid medical liability lawsuits. Vandenberg explains, “Hybrid liability suits attempt to disregard medical malpractice liability caps by conflating distinct legal theories—an end-run around legislative tort reform.” Vandenberg highlights these attempts as “disingenuous” ways to overcome limits on noneconomic damages. “We’ll continue to advocate for meaningful tort reform, and will continue to challenge and file amicus briefs in abusive hybrid lawsuits.” He also emphasized the importance of protecting the patient-physician relationship and the continued ability for open and honest discussions about health care recommendations. When asked about what was at stake in several of their key legal priorities in 2020, Vandenberg answered, “Access and trust. It’s really that simple.” To read the full interview on how the Litigation Center is playing a role in support of ensuring…

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Venue back on the menu? Proposed rule change could shift the landscape of medical malpractice in the Commonwealth

SOURCE: JD SUPRA Change may be coming soon to Pennsylvania’s medical malpractice venue rule (Rule 1006(a.1))—a change that could send medical malpractice filings in Philadelphia skyrocketing. Last week, the Legislative Budget and Finance Committee (the “Legislative Committee”) released a report on the potential impact of eliminating the medical malpractice venue rule, which has renewed debate on the issue of where medical malpractice patients should be allowed to file. The current rule, adopted in 2003, requires plaintiffs to file malpractice actions in the county where their injury occurred, unless that injury occurred outside the Commonwealth. By eliminating the rule, plaintiffs could file in any county where the defendant resides or regularly conducts business. In an age of ever-increasing consolidation in the health care services market, this change would allow more plaintiffs than ever to file in Philadelphia, where medical malpractice plaintiffs have a much higher rate of success. The move to eliminate the medical malpractice venue rule dates back to December 2018 when the Supreme Court’s Civil Procedure Rules Committee (“Rules Committee”) determined that the rule “no longer appears warranted.” However, the Rules Committee delayed its plans so that the Senate could study the potential impact of the proposed change. Released…

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November 2019 Newsletter

Iowa’s liability climate is changing – for worse The Iowa Medical Society (IMS) highlighted how the state’s medical liability climate is shifting and threatening access to care in the Fall edition of Iowa Medicine. In 2017, a series of reforms including certificate of merit and expert witness requirements were implemented to drive down the number of meritless lawsuits filed in the state. Unfortunately, at the time, reasonable limits on non-economic damages were included only as a “soft cap,” allowing the limit to be waived by a jury in certain instances. MaryGrace Elson, MD, MME, FACOG, President of IMS and an OB/GYN from Iowa City, highlights the outcome of the soft cap in the edition’s feature story, “Our Medical Liability System in Crisis.” “In the past three years, Iowa’s medical liability climate has shifted dramatically,” she notes. “… Iowa’s trial bar has begun cherry-picking cases where there is no dispute that a medical error occurred. Employing questionable tactics that play to juries’ emotions and drive up award expectations, we have seen a string of high-dollar verdicts against physicians and facilities.” Over the past two years, just five lawsuits have led to awards of $63 million in noneconomic damages, and impacted patient…

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Pa. high court tosses seven-year medical malpractice limit

SOURCE: Modern Healthcare UPMC faces a medical malpractice suit stemming from a liver transplant in 2003 after the Pennsylvania Supreme Court threw out a state law barring malpractice lawsuits after seven years. In a 4-3 decision Thursday, the state ruled that the statute of repose, passed in 2002, unconstitutionally violates the right of access to the courts and lacks any substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums. That means the Yanakos family can proceed with their liability suit against the Pittsburgh-based health system and two of its physicians for taking a liver lobe donation from Christopher Yanakos to transplant into his mother Susan even though Christopher had the same genetic liver disease as she did. One of the dissenting justices wrote that the majority decision and concurrence “flout” the Legislature’s policymaking authority and that “it is not this court’s role to upend duly enacted legislation simply because we might sometimes deem it imperfect or unwise.” A number of states have enacted statutes of repose limiting medical liability suits, though courts in at least six other states — Alabama, Indiana, Kentucky, New Hampshire, Rhode Island and Utah — have struck them down. A statute of…

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Large med mal verdicts drive hospital liability up: Report

SOURCE: BUSINESS INSURANCE Self-insured hospital professional liability claims remain stable overall, but the frequency and severity of large excess claims continues to increase amid a rising number of large medical malpractice verdicts, according to a new report. The number of hospital professional liability claims experienced by health care organizations at the $2 million occurrence level is expected to remain flat, while claim severity, including defense costs, is growing at a 2% annual rate, according to a report released Tuesday by Aon PLC and the American Society for Health Care Risk Management. However, the frequency and average severity of losses greater than $5 million continue to increase, the report said. “After an increasing number of large medical malpractice verdicts following years of premium decreases, all stakeholders in malpractice liability are under pressure,” the report said. As a result, premium rates and self-insured retentions are increasing, and medical malpractice insurers are reducing capacity or even exiting the market, the report found. The average indemnity paid for claims over $5 million is $10 million now, compared with $8.6 million a few years ago, the Aon database reveals. Beazley PLC’s database of medical malpractice claims also shows the average cost of a paid claim…

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July 2019 Newsletter

Opportunity for ACCESS: Liability reform introduced in Congress A new bill introduced in Congress offers the opportunity to limit the patchwork of medical liability laws and bring certainty to patients across the country seeking access to care. The Accessible Care by Curbing Excessive LawSuitS Act (ACCESS Act) is a comprehensive medical liability reform bill introduced by Representative Richard Hudson (R-NC) and modeled after proven reforms already in place in Texas, California, and many other states around the country. Rep. Hudson was joined in introducing the bill by Representatives Roger Marshall, MD (R-KS) and Larry Bucshon, MD (R-IN). The bill, H.R. 3656, ensures full and unlimited recovery of economic damages to deserving patients for expenses such as lost wages, past and future medical expenses, rehabilitation costs, and other out-of-pocket expenses. The legislation also permits the additional recovery of up to $250,000 for non-economic damages, such as damages awarded for pain and suffering, and the bill also protects states’ rights in the process. Recent estimates from the Congressional Budget Office (CBO) and the staff of the Joint Committee on Taxation (JCT) estimate that the provisions included in the bill would reduce federal spending by about $14 billion over five years, and almost…

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Pennsylvania Supreme Court Holds that Evidence of Risks and Complications is Admissible in Medical Malpractice Cases

SOURCE: JD Supra This week, in the decision of Mitchell v. Shikora, the Pennsylvania Supreme Court held that evidence of risks and complications of a medical procedure is admissible, overturning a decision by the Superior Court. Two years ago, the Superior Court held that a new trial was warranted following a defense verdict in a case involving a bowel injury during a laparoscopic hysterectomy. The plaintiff argued that the injury was due to the surgeon’s failure to appropriately identify the patient’s anatomy prior to making an incision, but defendants’ expert opined that the bowel injury is a common complication and does not indicate one way or the other whether negligence has occurred. Seizing on that testimony, the plaintiff argued on appeal that discussion of the risks and complications in a laparoscopic hysterectomy were immaterial to the issue of whether the surgeon breached the standard of care in performing the surgery, with which the Superior Court agreed. The Superior Court held that informed consent evidence is not admissible in a medical negligence case that does not involve an informed consent claim. In a decision by Justice Todd, joined by three other justices (with a fourth concurring justice), the Supreme Court explained…

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April 2019 Newsletter

Risky business: Lawsuit venue shopping harms access to care An overview of Pennsylvania’s recent proposed changes to lawsuit venue filing rules highlights the risk it adds to accessible and affordable care. Following a surge of liability lawsuits in locations that were seen as ruling favorably to plaintiffs, the Pennsylvania Supreme Court issued a rule that required a plaintiff to file the lawsuit in the county where the alleged medical error occurred. When recent discussions on changes to this rule to allow for “venue shopping” were made public, justices agreed to delay any changes until a legislative study could be done on the matter. A public hearing made the position of access to care advocates clear: “…Doctors and hospitals would be reluctant to partner with facilities located in a city where juries tend to favor plaintiffs over defendants, rewarding the former with sizable judgments,” a recent Medscape article reflected. Restrictions on venue shopping have reduced medical lawsuit abuse in the state of Pennsylvania, bringing the state’s medical liability compensation fund to a record surplus. The risks of venue shopping “will need to [be weighed] carefully before deciding whether the venue rule should stand as it is or be altered,” the article…

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February 2019 Newsletter

PA Supreme Court avoids rush to judgement on liability rule changes The Pennsylvania Supreme Court announced it would delay a proposal that could encourage medical lawsuit abuse across the state. At issue is a proposed rule change that would allow lawsuits to be filed outside of the county where the incident in question occurred. The announcement followed a request by the state Senate to study the issue further before any changes are made. The legislature’s Budget and Finance Committee will look at how the location where liability lawsuits are filed impacts access to care, costs, and compensation. Fifteen years ago, lawsuits could be brought forth in any county where the doctor or hospital did business. Philadelphia, which built up a reputation for its litigious environment, became the city of choice for personal injury attorneys “venue shopping” their lawsuit. The Senate’s report is due to the Pennsylvania Supreme Court by Jan. 1, putting a hold on any changes this year. To read more about the proposed changes in Pennsylvania’s liability laws, click here. Costs remain crippling even as liability lawsuits decline While the frequency of medical liability claims show a positive downward trend, the cost of defending a lawsuit and average…

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Pennsylvania Supreme Court relents for now on medical malpractice changes

SOURCE: The Morning Call The Pennsylvania Supreme Court on Thursday temporarily set aside its contentious proposal to ease 17-year-old restraints on medical malpractice lawsuits. In a letter, the high court informed Pennsylvania Senate leaders it accepted their request to postpone action pending review by a legislative research office. At issue is whether to roll back a 2002 court rule requiring malpractice lawsuits to be filed in the county where the alleged medical error occurred, not where a jury might view the claim most favorably. The Democrat-majority court’s proposal drew scorn from Republican lawmakers, and from doctors and their lobbyists. The opponents said “venue shopping” would unleash frivolous lawsuits and drive up doctors’ malpractice insurance costs, as sometimes occurred before the rule was instituted with other malpractice changes in 2002 and 2003. Democratic lawmakers sided with trial lawyers, who were asking the court to make the change. They argued the venue restriction makes it impossible to find impartial juries in some rural counties and pointed out that no other industry faces similar curbs on civil lawsuits claiming injury or negligence. The Senate last week passed a resolution asking the court to delay a decision on the policy change until year’s end…

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