Pennsylvania Medical Malpractice Venue Ruling Could Spell Financial Trouble
The Pennsylvania Supreme Court’s reversal of a key 20-year-old Medical Care Availability and Reduction of Error Act (MCARE) reform went into effect in January 2023 and returns medical malpractice venue rules to those in effect before the reform.1 Supporters of the change cite the need to restore justice and “level the playing field,”1 while critics fear a return to an environment that fueled the medical liability crisis of the late 1990s and early 2000s—larger jury awards and a significant increase in liability insurance rates for providers in an already fragile healthcare system.1
Prior to the passage of MCARE in 2002, Pennsylvania Supreme Court Rules of Civil Procedure allowed broad flexibility in where medical malpractice claims could be filed. This led to what is known as venue shopping, where litigants could select a permissible venue where they anticipated friendly juries and larger awards.2 Healthcare providers blamed this environment for an exodus of physicians from the state—especially those in higher risk (and thus higher premium) specialties—to more favorable practice environments.3
An investigation by the Pennsylvania legislature in response to the crisis resulted in MCARE, which included, among other features, changes to venue rules requiring medical professional liability claims to be filed in the county in which the cause of action arose.2 The contention around the issue continued among the public as well as within the elected Supreme Court, which has state constitutional power “to prescribe general rules governing practice, procedure, and the conduct of all courts.”
Critics of MCARE argued that juries in conservative and rural counties were less friendly to medical malpractice claims resulting in an unfair advantage to medical professionals in those areas. They also claimed that in smaller counties physicians were more well-known and respected and treated more sympathetically. These demographic conditions, they argued, led to lower awards for plaintiffs.2
In 2018, the Pennsylvania Supreme Court’s Civil Procedural Rules Committee published a proposed amendment to the rule claiming that it unfairly privileged a particular class of defendants, resulting in a significant decrease in medical malpractice claims.2 An actuarial analysis commissioned by the Pennsylvania Senate Judiciary Committee prior to the Court’s decision assessed the impact of the change and identified a number of likely negative impacts. "The analysis concluded that medical professional liability insurance carriers, specifically, are likely to see a significant rise in lawsuits filed in venues like Philadelphia where juries are seen as 'more sympathetic to patients and [more likely to] award larger verdicts.'”4 Exacerbating the impact of this change, according to the analysis, are existing trends in healthcare consolidation and telehealth—both of which increase the geographic reach of urban-based health systems and (theoretically) the number of permissible venues available to litigants.2,4 Ultimately the Rules Committee concluded that there was no justification for treating medical malpractice differently than other civil claims.1
House File 161 Establishes Noneconomic Damages Caps
On February 16, 2023, Iowa Governor Kim Reynolds signed House File 161 into law. This bill establishes caps for noneconomic damages awarded to plaintiffs in certain severe medical malpractice cases. The legislation, passed by the House (54-46) and Senate (29-20), limits the amount of money certain injured claimants can receive for pain and suffering as well as emotional distress, with damages capped at $1 million for lawsuits naming clinics, individual physicians, and other healthcare providers and $2 million for lawsuits against hospitals. The cap applies to any “cause of action” accruing on or after the effective date, i.e., the day the bill was signed and enacted, and is not dependent on when a lawsuit is filed. For causes of action accrued before the enactment, the old law will apply, meaning there will continue to be no cap on noneconomic damages for the delineated severe medical malpractice cases. HF 161 does not impose any caps on economic or punitive damage amounts or money awarded for financial losses. In fact, while Iowa Code section 668A.1 previously restricted claimants to receive no more than 25% of punitive damages with 75% going to a state trust fund, HF 161 amended the Code to provide full recovery of those damages in cases against physicians, surgeons, and other healthcare providers whose conduct is determined to constitute “willful and wanton disregard for the rights or safety of another.”
HF 161 modifies Iowa Code section 147.136A, a statute established by the legislature in 2017, which imposes noneconomic damage caps at $250,000 in medical malpractice suits against healthcare providers. This statute allowed an exception in cases of “substantial or permanent loss or impairment of a bodily function, substantial disfigurement, or death,” enabling juries and courts to award higher damages to plaintiffs, with no limit, if the $250,000 compensation was deemed inadequate. HF 161 states that recovery amounts for such severe medical malpractice cases shall not exceed the new $1 million or $2 million cap and adds “loss of pregnancy” to the list of qualifying medical incidents. The bill also leaves the current definition of noneconomic damages intact (“damages arising from pain, suffering, inconvenience, physical impairment, mental anguish, emotional pain and suffering, loss of chance, loss of consortium, or any other nonpecuniary damages”), but adds a clarification that “loss of dependent care” is an economic damage. The noneconomic damage caps will increase 2.1% beginning January 1, 2028, then annually each January 1 thereafter. HF 161 will also establish a task force to create recommendations for the reduction of medical error rates in Iowa.
Supporters of the bill, including Reynolds, say these caps will help make Iowa a more attractive place for qualified physicians to practice but will also improve access to quality healthcare for all Iowans. “Over the years I’ve heard from many hospital executives about the challenges they face when recruiting doctors,” Reynolds said. To her, the bill represents reasonable malpractice reform and serves as “a lifeline for rural medical providers facing rising insurance rates and difficulty attracting doctors wary of large jury verdicts.” She emphasizes that liability limits help hospitals, particularly those in underserved rural areas and with care shortages, control their costs and enable them to remain open.
Claims Concerns in the Southeast
If you live in (or travel to) the Southeast, you know summer is a precarious time. We are ever so mindful of the weather and potential for hurricanes. How warm are the winds coming off the Sahara? Is this an El Nino or La Nina year … and which is better? And, oh, do we love the spaghetti maps. Decision points, like when the tropical storm is in the Caribbean, will it go into the Gulf, will it go up the Atlantic coast, or will it split Florida in half … again!
Bad weather is not the only danger that looms in the Southeast. We, in the medical professional liability space, must also face the challenges and potential storms that result from litigation against our insureds. After all, that is why ProAssurance Claims is here—to protect others.
Our role is to provide exceptional management of our insureds’ claims. We strive to protect our insureds by retaining excellent defense counsel who will work diligently to defend the healthcare provider. We also make sure we locate and provide experts in the involved medical fields to review the medicine and support or insureds’ care and treatment. We evaluate and analyze the strength of defending the case and whether trial is the best option. We also work with our insureds to make them comfortable with the entire litigation process, including providing someone
for them to talk to regarding the stress related to litigation, if necessary.
So what sets ProAssurance apart from other MPL carriers? Sometimes it is the intangibles that really differentiate one from another. In a recent Company address, Ned Rand, President and CEO, spoke about “the why of what we do.” This resonated deeply in me.
The "why" is not something that can be taught, not something that is learned. The “why” is an ingrained, internally developed experience that provides a mindset that what we do matters. That is because what our insureds do matters to us, but more importantly it matters to our insureds. Most of us have a positive “story” related to interaction with a physician, nurse, or other healthcare provider. Some of us have been in the unfortunate situation to personally see our healthcare providers be faced with something that we would describe as a crisis, but which they may simply have seen as a medical challenge. As Ned commented, seeing “how healthcare providers respond with confidence and without fear to the unexpected” is why we do what we do.
Most of us have “our story” and I have mine. And it is because of the efforts, knowledge, and confidence of our delivery team that allowed my wife and me to have and share one week—seven days—with our first daughter that we otherwise would not have had that gives me the passion to work to protect the interests of our insureds.
And mine is one of many “stories” of the individuals that make up the Claims team that work every day “to allow our insureds’ to respond without delay and without fear.”
So no matter what the future holds for the Southeast region, or for the rest of the country, we will be here, at the ready. Because what we do matters.
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3 Plaintiffs’ Attorney Tactics Driving Excess Medical Malpractice Verdicts and How to Counter Them
ProAssurance’s Mark Lightfoot, Regional Claims Executive, featured in Risk & Insurance
Despite a reduction in medical malpractice claims in recent years, plaintiffs’ attorneys are using strategies to boost the number of excess verdicts in litigation, leading to increased costs for physicians and hospitals. This article covers three of those tactics and suggests ways that insureds and their attorneys can respond with an effective defense.
Upon hiring me, my new boss, Jeff, handed me a product catalog and said, “Go sell! Your first call tomorrow should be to Dr. Richards. He’s the busiest surgeon in your territory. Introduce yourself and ask him if you can observe surgery. Make a good impression!”
I arrived at Dr. Richards’ office shortly after it opened and asked to meet the doctor. The receptionist escorted me to Dr. Richards’ desk. He was a friendly man with a big smile.
His first words to me were, “It’s about time! It’s been a year since I’ve seen a rep from your company.”
After introducing myself and making some typical promises new sales reps make about good service and respecting the doctor’s time, I asked, “Would it be possible for me to observe surgery sometime?”
Dr. Richards responded, “I’m using your hip screw to fix a fractured hip at the hospital today at 2 p.m. Tell Beth, the O.R. supervisor, I said you can watch.”
Excited to be in my first surgery, I arrived at the hospital early, which was good because the case started early. Beth instructed me to change into scrubs and to go to O.R. 2.
Dr. Richards stood outside Room 2, speaking with a young doctor scrubbing for surgery. Richards saw me and said, “Here’s Mace, our new rep. Mace, Dr. Mitchell is my second-year resident. He’ll be doing this surgery instead of me.” With that, Dr. Richards turned and left.
I chatted with Dr. Mitchell while he finished scrubbing. As I followed him into the operating room, he said, “This is my first solo hip fracture. I’m glad you’re here to help me.”
I hid the feeling of panic as I remembered my boss’s order to make a good impression. Should I confess that I know nothing about the procedure he was about to perform, or just keep my mouth shut and hope for the best?
I foolishly chose the latter. My ruse was tested when Dr. Mitchell paused his surgical drilling and hammering to ask a question.
“Hey, Mace, what are most surgeons doing regarding the length of the lag screw? Are they matching the pilot length or going shorter to allow for compression?”
I was clueless as to what the surgeon was talking about. Hoping for more information, I asked, “What does Dr. Richards do?”
“He prefers shorter. That’s what I’ll do.”
A few minutes later, Dr. Mitchell called my name again. “Mace, what cortical screws are most surgeons using? Standard or self-tapping?”
Without thinking, I blurted, “What’s the difference?”
I asked the question out of ignorance, but the doctor mistook it for my answer and said, “You’re right. There’s not much difference. I’ll use the self-tapping.”
After what seemed like an eternity, the surgery was over. As I followed Dr. Mitchell out of the room, he turned and shook my hand. “Mace, thank you for coming today. It’s helpful having a knowledgeable rep in the room.”
I survived that humbling experience and learned never to conceal inexperience again. I also learned the job was about more than just selling a product; it’s about being a trusted resource whose mission is to inform HCPs about product options and help them obtain the best possible outcomes using them.
Changes in healthcare over the last three years may have you thinking and working differently, but your mission remains the same—to be a passionate advocate who protects HCPs and practices from medical liability risk and provides innovative solutions from ProAssurance to help protect them.
Written by Mace Horoff of Medical Sales Performance.
Mace Horoff is a representative of Sales Pilot. He helps sales teams and individual representatives who sell medical devices, pharmaceuticals, biotechnology, healthcare services, and other healthcare-related products to sell more and earn more by employing a specialized healthcare system.
Have a topic you’d like to see covered? Email your suggestions to AskMarketing@ProAssurance.com.
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