Pennsylvania Supreme Court relents for now on medical malpractice changes

Morning Call (Allentown, PA)

Feb. 15--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, along partisan lines, last week passed a resolution asking the court to delay a decision on the policy change until year's end so a legislative study can be done.

On Thursday, the justices agreed, drawing praise from top Senate Republicans.

The court's decision came the same day the House Republican Caucus held a public policy hearing on the court's proposed change.

At the hearing, hospital officials -- including from St. Luke's in Fountain Hill -- told the GOP lawmakers that regional health care partnerships with Philadelphia groups may be jeopardized if the court rescinds its rule against "venue shopping." They contend Philadelphia juries are more willing to award pricey verdicts in favor of patients.

At the hearing, Mark Zolfaghari, chief counsel for the St. Luke's University Health Network, threatened to end St. Luke's partnership with Grand View Hospital's high-risk pregnancy specialists if the justices overturn the rule. Grand View's Bucks County location is too close to Philadelphia for St. Luke's to take the chance that a malpractice lawsuit against Grand View could be filed in the city, he said.

"Although our specialists would be treating patients in Bucks County, the possibility of being drawn into Philadelphia under the proposed venue rule likely would require our network to rethink this relationship, resulting in Grand View Hospital having to transfer any high-risk pregnancies to another facility," Zolfaghari said.

Absent the rule, he said, St. Luke's may not have taken medical school students in a 2009 partnership with the Lewis Katz School of Medicine at Temple University in Philadelphia.

Similar concerns were voiced by Dr. Danae Powers, president of the Pennsylvania Medical Society, a lobbying group, and by Dr. Christopher Addis, chairman of the Medicine Department at Penn Medicine Lancaster General Health.

Independent economists and health care experts later disputed the practicality of those claims.

"I don't see that logic," said Hanming Fang, a University of Pennsylvania economics professor who studies insurance and health care markets.

Theoretically, he said, changing the venue rule would allow a lawyer to file a malpractice lawsuit in Philadelphia regardless of affiliations with Philadelphia health systems.

Rex Burgdorfer, a Chicago health care merger expert who has worked in Pennsylvania, said in an interview that he has not seen health systems pursue merger and acquisition strategies solely for reasons relating to legal malpractice or court venue/jurisdiction.

"Local and state dynamics factor into strategic partnership decisions," he said, "but malpractice standards are not often the singular driving factor."

The GOP panelists did not hear comments similar to Fang's or Burgdorfer's. Policy hearings, whether conducted by Republicans or Democrats, are limited to panelists who side with the respective caucus' positions.

GOP lawmakers oppose the venue rollback; so did the panelists who testified Tuesday.

Still, it was the first public hearing on the issue. The court's committee was keeping secret public comments on the proposal.

In the late 1990s and early 2000s, doctors and lawyers squared off in the Capitol over malpractice lawsuits. In 2002, the Legislature and Gov. Ed Rendell created new laws that eased the cost of malpractice insurance and made legal settlements easier outside a courtroom. The justices limited where lawsuits could be filed and also required lawyers to vet a claim through an independent doctor before filing the lawsuit.

Since then, the number of lawsuits and verdicts have dropped, state court records show. Private insurance companies are now taking in more money in malpractice premiums than they are paying out in claims, state insurance records show.

Surpluses have grown so high in a state-created medical malpractice fund that lawmakers and Democratic Gov. Tom Wolf tried to take $200 million from it for budgets. A federal judge blocked them each time.

There's no way to know how much the venue change contributed to the decline in lawsuits and verdicts, Kevin Cottone, a Philadelphia hospital defense lawyer, told the lawmakers. Most likely, he said, it was a combination of all the changes made nearly two decades ago.

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