Return to venue shopping in medical lawsuits already taking toll

A return to the no-good old days when plaintiffs’ lawyers were given wide latitude in where they could file medical malpractice lawsuits has been in effect for only six months, and already health care providers and civil justice reformers have seen enough. The return of venue, or forum, “shopping” has quickly resulted in a spike in lawsuits in plaintiff-friendly Philadelphia courts – number two in the latest ranking of the nation’s “Judicial Hellholes” by the American Tort Reform Association’s (ATRA).

Curt Schroder, Executive Director of the Pennsylvania Coalition for Civil Justice Reform, has written to the state Supreme Court’s Civil Procedural Rules Committee asking for an immediate review of the impact of the venue rule change. The court is planning to wait two years before reviewing the change that limited the cases to the county where the cause of action allegedly occurred, a change approved under Medical Care Availability and Reduction of Error (MCARE) Act of 2002 to reduce frivolous lawsuits and rein in skyrocketing insurance costs.

“The record for the first four months of 2023 reveals that plaintiff attorneys are flocking en masse to Philadelphia to file malpractice cases which could not have been filed there under the previous rule,” Schroder wrote in late May to Kathleen D. Bruder, Esq., Chair of the Supreme Court’s Civil Procedural Rules Committee.  “The Philadelphia Court of Common Pleas tracks the number of medical liability case filings each month.”

“A chart supplied by the court is updated monthly,” he continued, “and compares each month of 2023 with medical malpractice cases filed during the previous six years for the same month. Every month of 2023 has shown substantial increases in medical malpractice filings in Philadelphia over the previous six years for the same month. The below chart from Philadelphia Common Pleas shows that there have been 51 medical liability cases filed on average each month in 2023. The next highest year is 2018 which averaged only 35 cases per month, a remarkable increase of 46%.”

The spike in cases, and with it, insurance costs, impacts us all, said PMA President & CEO David N. Taylor

“This is another victory for Pennsylvania’s litigation industry at the expense of everyone else,” Taylor said. “The venue reform of 2002 was effective, which is why the ambulance chasers had to knock it out.”

Technically, the rule change expanded where medical malpractice suits may be filed: in any county in which care occurred; where a defendant could be served; where any transaction or occurrence giving rise to the suit took place.

Prior to the rule change, the MCARE ACT of 2002 succeed in its goal of reducing the number of claims by preventing venue shopping. Before MCARE, approximately 2,700 medical malpractice cases were filed in Pennsylvania in a typical year. After the act, and implementation of the rule limiting venue, the number of cases dropped nearly in half, to 1,500 per year.

The Pennsylvania Supreme Court and the Philadelphia Court of Common Pleas combined to give Pennsylvania it’s shameful ranking in ATRA’s annual Judicial Hellhole report.

ATRA’s rationale for placing Pennsylvania so high: “Pennsylvania Supreme Court continues to promote forum shopping and eliminated an important rule governing where lawyers may file medical liability cases. The Court also opened the door to awarding plaintiffs unreasonable attorneys’ fees. The Philadelphia Court of Common Pleas continues to be a preferred court for mass tort litigation. This court also hosts most of the state’s nuclear verdicts. Plaintiffs from across the country flock to the Court of Common Pleas because of its reputation for excessive verdicts and its ‘open door’ policy to out-of-state plaintiffs.”

As expected, insurance costs are rising.

“The increase in doctors and hospitals from other parts of the state being sued in Philadelphia has predictably impacted the cost of their liability insurance,” Schroder wrote to the Supreme Court. “According to information provided by the Medical Professional Liability Association (MPLA), these increases are a direct result of the increased exposure to liability and damages that accompanies being sued in Philadelphia. And with new records being established, such as recent $182.7 million, $43.5 million, and $25.9 million Philadelphia verdicts in 2023 alone,3 the pressures on malpractice insurance premiums will continue to grow as more and more plaintiffs’ attorneys seek to cash in by suing in Philadelphia.”

This was originally released in the PMA Bulletin on June 21, 2023.

Nothing contained here should be considered as an attempt to aid or hinder the passage of any legislation.

The views expressed here are those of the author and not necessarily those of The Susquehanna Valley Center.