Medical malpractice filings in Philadelphia surged last year following the state Supreme Court’s reversal of a 2002 rule that required lawsuits to be filed in the jurisdiction where they occurred.

That reversal, said a local attorney, will not only increase the number of lawsuits filed in verdict friendly venues, but could increase medical malpractice insurance rates and drive physicians out of the state.

“There is no question the lawsuits skyrocketed. I know from personal experience that more cases involving Lancaster clients were filed in Philadelphia in 2023,” said Katherine Kravitz, partner, Barley Snyder.

The 2002 court rule required plaintiffs’ lawyers to file medical liability lawsuits in the county where treatment occurred, not where a jury is expected to view the claim most favorably or return the largest award.

Now, Kravitz said, medical malpractice suits can be filed not only where medical treatment took place, but also any additional location where the health care provider operates an office, any additional hospital locations in which the physician provides care, or where a physician lives.

Court filings

According to a report by the American Tort Reform Foundation (ATR Foundation), through October 2023, there was a 108% increase in filings (468) when compared to the same time in 2022 (225). ATR Foundation said from 2017 to 2019, plaintiffs suing healthcare providers in Philadelphia County won at a 36% rate, compared to a 12% and 9% rate in nearby Montgomery and Lancaster counties, respectively. Due to the rule’s elimination, cases filed against health systems in different counties across the state have now been refiled in Philadelphia.

“This is having the effect everyone thought it would,” Kravitz said. “This makes a big difference trying to navigate the system.”

Kravitz said she expects to see malpractice insurance premiums rise and more doctors relocating to other states at a time when the health care system is facing a shortage of health care workers.

Medical malpractice insurance rates have predictably increased since the rule change went into effect, ATR Foundation said. In fact, it said according to the Pennsylvania Coalition for Civil Justice Reform (PCCJR), “manual rates have been increased by specialty, with a minimum increase of 10.5% and a maximum increase of 16.1%.”

Nicole Stallings, president and CEO, Hospital and Healthsystem Association of Pennsylvania, said the state is a net exporter of physicians and this “venue shopping” makes it difficult to recruit and retain physicians.

Kravitz said since it’s only one year with the “new old rules”, all the data is not in, but she predicts there will be more high dollar verdicts with suits being filed in Philadelphia.

ATR Foundation said the PCCJR sent the Pennsylvania Supreme Court a formal request to immediately review the rule change. The letter points out how every month of 2023 has shown a significant increase in filings in Philadelphia over the previous six years for the same month.

Keeping up with case increases

Philadelphia courts are struggling to keep up with the increased case load and if the current filing rate continues, the trial calendars for 2025, 2026, and 2027 will be filled – by the end of 2023, the foundation said.

Kravitz agreed, saying the Philadelphia case calendar is already filled through 2025.

“It seems logical to me that cases involving health care providers in a particular county should be tried there. The jurors are invested and should decide the verdicts,” Kravitz said. “Having a jury in Philadelphia decide cases that happened across the state when it has no bearing on them or their community doesn’t seem like the best way to do things.”

Kravitz said the trend in health care for health care systems to affiliate makes the issue even worse for venue shopping.

“Health care systems are affiliating to bring advanced medicine and research that is only available at large research facilities to community settings,” she said. “If this opens people up to being sued in the ‘hellhole’, then are systems or providers going to be reluctant to affiliate or will they look for partners in other states?” she questioned.

By embracing these rules, Kravitz said she believes the court has made it easier to sue affiliates simply because they wanted to bring advanced care to smaller communities.

Challenges to venue

There are ways to challenge the rule, Kravitz said. The first is to try to prove the venue is not the proper place to try the case. She explained that if it can be proven the case has no tie to the county, it can’t be tried there.

“If you lose that, then you have to try for a forum non conveniens, meaning is it convenient to try the case in that venue,” she said. “The decisions for this are a bit uneven.”

She explained that with the onset of virtual depositions during the pandemic, courts often find it convenient for trial preparation to be conducted no matter where the parties are located.

For physicians, Kravitz said, traveling for a trial can be difficult, especially if the physician is only one of a few specialists in a community.

“A trial in Philadelphia can take someone away from his job for longer than he can manage,” she said.

The state Supreme Court is set to revisit the rule later this year. Kravitz said that may not be enough time to have data to show the need to reverse it.

“The trends in verdicts will be available but increased insurance premiums and the number of doctors leaving the state will be harder to assess in that amount of time,” she said.

“I hope we don’t have to go through the learning curve where there is a crisis,” she added. “We already have shortages in all health care fields.”