Pennsylvania’s physicians are experiencing a sense of déjà vu as the state appears to be heading toward another medical liability insurance crisis.
The state was gripped by such a crisis approximately twenty years ago as trial lawyers pursued malpractice lawsuits by venue shopping. This meant bringing cases in counties where the juries granted excessively high awards, even if the injury did not occur in those counties. Philadelphia and Allegheny counties were the most popular among such lawyers. Consequently, medical liability insurance costs soared, leading to early physician retirements and limited services in hospitals and outpatient facilities, causing critical care deprivation, especially for women seeking obstetrics and gynecology services.
According to some accounts, Pennsylvania had the worst medical liability environment in the nation.
The state government took a series of reforms in the early 2000s that stabilized the insurance market, and medical practice and patient care resumed as before. The most significant reform dealt with where lawsuits could be brought. Venue reform required medical liability lawsuits to be filed in the county where the injury occurred, and this ended trial lawyer venue shopping, saving Pennsylvania’s healthcare delivery system.
However, in August 2022, the state Supreme Court reverted to the previous venue rules, discarding twenty years of commonsense jurisprudence and medical care stability. This move meant that “venue shopping” returned to Pennsylvania on January 1, 2023. The trial lawyers are back to their old ways, as evidenced by the data from Philadelphia County, where the number of medical liability cases rose significantly in 2023 compared to the same period last year.
The state Supreme Court’s new/old venue rule, commonly known as a “nexus” rule, allows a medical liability lawsuit to be brought in any county that has a connection to the alleged injury. In 2023, it is far easier to establish a nexus to Philadelphia and Allegheny counties than it was 20 years ago. For instance, UPMC owns hospitals throughout the Commonwealth, meaning a physician in Williamsport could find herself defending a lawsuit in Allegheny County. Similarly, Lancaster General Hospital is affiliated with Penn Medicine, so the nexus to Philadelphia County courts is easy to establish.
However, the fact that two major integrated healthcare systems are headquartered in the two highest jury award payout counties should not affect whether a lawsuit can be brought in Philadelphia or Pittsburgh. If a lawsuit is initiated, it should be filed and litigated in the county where the care was provided, not where the highest malpractice financial award might be won. This is simply common sense.
The Pennsylvania College of Emergency Physicians (PACEP) calls on the General Assembly and Gov. Josh Shapiro to enact reasonable and logical reforms to avoid another medical liability insurance crisis.
These include establishing Subject Matter Jurisdiction in the county of the alleged injury, reforming the current Certificate of Merit statute to require an actual medical expert report from a Pennsylvania licensed physician of the same training and specialty as the defendant physician, and restricting damages computation to only the economic indicators found in the county of the alleged injury.
PACEP pledges to work with the legislature and Governor Shapiro on these and other common sense reforms to prevent another medical liability insurance crisis. The time to act is now, before patients suffer due to a lack of vital services, causing déjà vu all over again.
Chadd K. Kraus is physician and president of the Pennsylvania College of Emergency Physicians (PACEP).