ATRF Publishes Annual ‘Judicial Hellholes Report,’ Medical Professional Liability Again Plays Determining Role

The American Tort Reform Foundation (ATRF) issued its 2020/2021 Judicial Hellholes report last month. The annual release documents abuses of the civil justice system in jurisdictions the pro-tort reform group says are among the most unfair and out of balance in the nation. The ATRF is a branch of the American Tort Reform Association (ATRA), an umbrella organization exclusively dedicated to reforming the nation’s court system via a network of state-based liability-reform coalitions.

As with every year, medical professional liability issues played a significant role in which regions received mention in the 2020/2021 Judicial Hellholes report.

The Philadelphia Court of Common Pleas and the Supreme Court of Pennsylvania were crowned America’s Number One Judicial Hellhole in this year’s report, in part due to escalating medical professional liability verdicts. According to the report, Pennsylvania paid out $30.79 per state resident in medical liability suits — a total of $394 million — in 2019, placing it in the top five states with the highest payouts per capita and second only to New York for total payouts. By contrast, states with the lowest payouts paid between $4 and $6 per resident.

The ATRA report also spotlighted a recent proposal by the Supreme Court of Pennsylvania’s Civil Procedure Rules Committee’s to ease the court’s restraints on venue shopping in medical malpractice lawsuits. In 2002, a rule was passed requiring medical liability claims be filed within the county where the treatment occurred. The committee’s new proposal would let a medical malpractice plaintiff file suit not only in the jurisdiction where the treatment occurred, but also anywhere within the state the physician has admitting privileges, maintains an office or lives. A report released by the Pennsylvania Legislative Budget & Finance Committee found available data inconclusive as to the effect the rule change would have, though it did note that medical malpractice insurance premiums have been stable since the rule was instituted.

The 2020/2021 report also took issue with Pennsylvania’s continued reliance on the Frye standard for evaluating expert testimony. The state is one of only seven still using the standard, which the ATRA considers weaker than the Daubert standard employed in 40 other states and the District of Columbia. Daubert empowers judges to serve as gatekeepers who ensure that the theories offered are reliable and backed by sound science. The Supreme Court of Pennsylvania reestablished the state’s reliance on Frye in its October 2019 Walsh v. BASF Corp. decision.

“It is a judge’s responsibility to ensure unsupported theories and junk science aren’t presented in court as generally accepted scientific or technical principles before a jury,” said Tiger Joyce, ATRA president. “Unfortunately, Pennsylvania’s Supreme Court allowed just that to happen and, in doing so, made it even more difficult for judges across their state to weed out such junk science from their courtrooms.”

In an end note punctuating its number-one ranking, the ATRA notes that Pennsylvania Gov. Tom Wolf vetoed legislation in November 2020 that would have provided COVID-19 liability protections for hospitals, medical practices and nursing homes.

New York City received the Number Two Judicial Hellhole distinction this year for, among other things, a concerning rise in nuclear verdicts in cases ranging from premise liability to medical malpractice. The ATRA blames these “tens-of-millions-of-dollars” verdicts on improper tactics by plaintiff attorneys that “inflame jurors and mislead them to believe that amounts at these levels are ordinary and acceptable in litigation.” The ATRA denounces these tactics and verdicts because they “hardly serve a compensatory purpose,” but rather punish.

New York State was also called out for its legislature having already rolled back some of the COVID-19 liability protections it passed in March 2020 for nursing homes and hospitals.

“It was disappointing to see New York’s legislature turn its back on essential healthcare workers during such a critical time,” Joyce said. “The worry is that by eliminating legal protections, facilities across the state will be unprepared for future case spikes.”

Minnesota landed at the Number Nine spot on this year’s Judicial Hellholes report, largely due to its medical liability laws. The ATRA noted that the state has a four-year statute of limitations, while most states cap that period at two, and Minnesota still does not have any cap on noneconomic damages.

According to the ATRA, the state is still coming to terms with  the Minnesota Supreme Court’s 2019 decision in Warren v. Dinter, which determined that a doctor can face a medical liability lawsuit even when no traditional physician-patient relationship existed.

Like Pennsylvania, Minnesota is one of the few states that still do not employ the Daubert standard of evidence. The Minnesota Supreme Court recently rejected its own advisory committee’s recommendation that it amend the state’s rules of evidence to effectively follow Daubert.

The report features a “Watch List” section that calls attention to jurisdictions that bear watching because they may be moving closer to, or further away from, designation as a Judicial Hellhole. Maryland appears under this listing due to its difficult legal climate, which is “affecting access to medical liability insurance and could prevent important patient care.” Maryland medical liability payouts are currently twice the national average; in Baltimore County, they are three times larger.

According to the ATRA, the Maryland Legislature “perennially explores eliminating the contributory negligence rule, decreasing the standard for punitive damages, and raising or eliminating the statutory limit on noneconomic damages in personal injury, medical liability and wrongful death cases.” Members of the legislature have also tried to weaken the rule mandating expert witnesses in medical malpractice trials practice in the same specialty as the defendant as well as rules regarding how much time an expert witness can devote to testimony.

To highlight the state’s deteriorating medical liability climate, the ATRA points to an Eighth Judicial Circuit associate judge upholding a record-setting $205 million birth injury verdict against Johns Hopkins after decreasing it from $229 million due to Maryland’s statutory limit on noneconomic damages. According to the ATRA, the verdict is twice the amount of the next largest in U.S. history. At least four reinsurers have pulled out of the Maryland market in response, and Johns Hopkins has said doctors may refuse to care for obstetric patients if the verdict is upheld on further appeal.

Jurisdictions are generally placed on the “Dishonorable Mentions” list of Judicial Hellholes for singularly unsound court decisions, abusive practices, oppressive legislation or other actions that erode the fairness of a state’s civil justice system and aren’t detailed in other sections of the report. The Idaho Supreme Court earned this citation due to a late-2019 ruling that permits plaintiff attorneys to introduce “inflated bills for medical treatment that no one paid and assert creative theories of liability against healthcare providers.”

The ruling came in the context of a medical malpractice case in which the plaintiff alleged they developed a bacterial infection following hip replacement surgery. The trial court ruled that the jury should determine damages for medical expenses based on the amount the healthcare providers accepted as payment for treatment. The Idaho Supreme Court reversed the trial court’s determination, ruling that the jury should consider only the amounts originally invoiced by the providers, but that a judge can reduce the award to deduct amounts not paid after the jury’s verdict is rendered. The ATRA explains the problem with this approach: a jury may be influenced by costs of medical expenses that do not reflect reality to award higher noneconomic or other damages.

The Idaho Supreme Court also ruled in the case that medical liability plaintiffs are not limited to bringing lawsuits under Idaho’s Medical Malpractice Act, but can assert a variety of common law actions. The plaintiff included claims for intentional infliction of emotional distress, negligent infliction of emotional distress, gross negligence, recklessness, and willful and wanton conduct. The lower court dismissed these claims, finding them subsumed by the Idaho Medical Malpractice Act, but the high court reinstated them. According to the ATRA, the court found “plaintiffs’ lawyers cannot use other causes of action to circumvent the proof requirements of the Medical Malpractice Act, though it left the door open to lawsuits against healthcare providers where these evidentiary requirements may not apply.”

The Oregon Supreme Court received a “Dishonorable Mention” for invalidating its state’s noneconomic damage cap for personal injury cases in Busch v. McInnis Waste Systems. In the July 2020 decision, the high court ruled that the statutory limit violated a citizen’s right to remedy, reversing its view from just four years earlier in a similar product liability case where it found difficulty seeing “how the jury trial right renders a damages cap unconstitutional.”

This article originally appeared in Medical Liability Monitor.

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