Keystone Today

An annual report issued by the American Tort Reform Association in December labeled Pennsylvania courts the No. 1 “Judicial Hellhole” in the country.

ATRA’s yearly report ranks where companies are perceived not to be given a fair shake in court. In the 2022 report, the Philadelphia County Court of Common Pleas and Supreme Court of Pennsylvania were jointly slotted at No. 2 on the list.

The report pointed to litigation tourism, the presence of nuclear verdicts and liability-expanding decisions, in supporting the ascension of the Philadelphia County Court of Common Pleas and the Supreme Court of Pennsylvania to its very top ranking in 2023.

One of those liability-expanding decisions, ATRA said, was the state Supreme Court’s decision to provide greater flexibility to where Pennsylvania plaintiffs could file medical malpractice cases statewide, beginning Jan. 1, 2023.

Through October 2023, Philadelphia medical liability filings increased 108% when compared with the same period in the previous year.

According to ATRA, with increased liability risks also come increased costs. Following the rule change, medical malpractice insurance rates went up, with some premiums increasing between 10.5% and 16.1%.

“This surge not only strains the court system but also impacts healthcare costs for patients. Escalation of medical liability can lead to an access to care crisis by driving doctors away from the state due to mounting costs,” ATRA President Tiger Joyce said.

The Supreme Court of Pennsylvania, in its adoption report explaining the venue rule’s institution and the process by which it came to be, disagreed with opponents to its decision.

“It has been postulated that eliminating the special venue mandate for medical practice actions will cause healthcare providers, in general, to leave Pennsylvania. Insofar as negligent providers are held accountable in a court of law for their acts and exit Pennsylvania as an uninsurable risk, that outcome is preferred to protect patients within this Commonwealth from further harm. With utmost respect, it is suggested that efforts are better focused on reducing the occurrence of negligence rather than limit liability after the negligence,” the Court said.

“In sum, a majority of the Committee did not find justification for the continued disparate treatment of victims of medical malpractice as it pertains to venue. The impact of the restrictive venue rules was such that the savings accruing to defendants represents less-than-full compensation to plaintiffs for their injuries. Instead, a majority concluded that medical malpractice claims should be subject to the same venue rules applicable to other professional liability claims and tort claims in general. Likewise, defendants in medical malpractice actions can avail themselves of procedural mechanisms to seek a change in venue that are available to all other defendants in other types of actions.”

History of Medical Malpractice Venue Rules in Pennsylvania

Business and legal reform groups like the Pennsylvania Coalition for Civil Justice Reform have warned that a healthcare crisis in the state could return if pre-Medical Care Availability and Reduction of Error (MCARE) Act venue guidelines were implemented by the Supreme Court of Pennsylvania. They say that the former, and once again, current venue rule, was to blame for high malpractice insurance costs that caused fewer healthcare options for patients in the late 1990s and early 2000s.

The former medical malpractice venue guideline in question was brought into law subsequent to 2002’s MCARE Act and after a recommendation from the Interbranch Commission on Venue, which then ensured plaintiffs were only permitted to sue in the county where their alleged injury took place. Its advocates argued that this standard led to a significant drop in medical malpractice litigation across the state.

However, a renewed debate over the rule governing venue for medical malpractice lawsuits in Pennsylvania was sparked by a letter written to the state Supreme Court late in 2018, which asked the body to re-examine the issue.

It appeared to have been the catalyst for a Supreme Court committee featuring five attorneys who work at firms that file medical malpractice lawsuits to propose reinstituting a venue rule more favorable to plaintiffs, allowing them to sue wherever a medical defendant conducts business – reminiscent of the way such lawsuits were allowed prior to the MCARE Act’s passage and the Interbranch Commission’s recommendation.

The change of rule at the start of 2023 has allowed plaintiffs’ attorneys to choose whichever eligible county they’d think would be likeliest to give out a jackpot. Philadelphia, for example, is known nationwide for its high-dollar jury verdicts and continues to be a hotbed for litigation, especially mass tort, medical malpractice, product liability and personal injury lawsuits.

But after the passage of Senate Resolution 20 in February 2019, calling for a committee report on the effects of changing the current venue guideline to be written and completed before the end of by the end of that year, the state Supreme Court decided to suspend any further action until the report was issued.

That report was issued in February 2020, though it did not make any clear-cut recommendation as to whether the medical malpractice venue rule should or should not be changed based on statewide trends in insurance rates, healthcare access and the number of lawsuits filed.

The issuance of the report that was followed by a controversial ruling from the Supreme Court of Pennsylvania in December 2021 in Lageman v. Zepp Et.Al, which provided that medical malpractice case juries can consider both direct and circumstantial evidence, under the res ipsa loquitur doctrine.

The doctrine allows for assumption of injuries as a result of negligence, in circumstances where such plaintiffs can prove that the doctrine is but one way to determine liability.

Rep. Rob Kauffman (R–Franklin County) had also introduced House Bill 2660, which sought to clarify and cement in the Pennsylvania Constitution under Article V, Section 10(c) that the General Assembly may establish the venue of a civil lawsuit by statute. The bill was eventually tabled in September 2022.

According to a tenet of the medical malpractice venue rule change, the Supreme Court of Pennsylvania’s Civil Procedural Rules Committee is currently subject to review the rule two years after its effective date, which would be Jan. 1, 2025.