2012/2013 'Judicial Hellholes' Report Emphasizes Medical Liability Reforms

The American Tort Reform Foundation (ATRF) released its 2012/2013 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.

Since its inception in 2002, the Judicial Hellholes report has compiled the most significant court rulings and legislative actions over the course of the year. Each report lists the five states or counties that the ATRF considers the worst in the nation for liability climate as well as listing geographic regions of concern on the association’s “Watch List” and especially egregious court decisions in its “Dishonorable Mentions” rankings.

As every year, medical liability issues played a large role in which regions received mention in the 2012/2013 Judicial Hellholes report. California stood atop the rankings this year, mostly due to the number of consumer class-action lawsuits filed in the state. This year’s report also highlighted the numerous attacks against California’s Medical Injury Compensation Reform Act (MICRA), the law in place since 1975 that limits subjective damages for pain and suffering in medical malpractice cases to $250,000. It also notes that the state has no caps on economic and punitive damages.

“The once Golden State’s limit on pain and suffering awards in medical malpractice cases, which has contributed to a stable healthcare environment for many years, is under constant attack…” according to the report’s authors. “The most recent attack on MICRA was filed in June 2012 in a case involving a $1 million non-economic damages award in addition to $2.9 million in economic damages. These lawsuits generally argue that the non-economic damages limit denies plaintiffs the right to a jury trial, violates equal protection under the state constitution since those who allege injuries stemming from medical malpractice are treated differently than other personal injury claimants or that the circumstances underlying the law have changed.”

Ranking No. 2 on this year’s Judicial Hellholes list, West Virginia did get kudos for upholding its cap on non-economic damages. Last year’s No. 1 Judicial Hellhole, Philadelphia, was moved to the ATRF’s “Watch List,” mostly due to recent restrictions on venue shopping in medical liability cases.

“In Pennsylvania overall, medical malpractice lawsuits are down 44.1 percent from the base years of 2000-2002; in Philly, they’re down a whopping 65 percent. The total number of med-mal filings in the city fell from 1,365 in 2003 to 577 in 2011—a 58 percent decrease. And [Pennsylvania Supreme Court] Chief Justice [Ronald] Castille says that ‘serious cases and the cases that deserve compensation are being handled well in the system,‘ since reforms were undertaken.”

Also dropping off the Hellholes list and onto the “Watch List” this year was the South Florida region. According to the authors, the upgrade was largely

“due to medical liability reforms adopted a decade ago, but the helpful law could be wiped off the books by the Florida Supreme Court. As noted in last year’s Judicial Hellholes report, observers are closely watching for the state high court’s ruling on a challenge to a law enacted in 2003 that limits medical liability damages for pain and suffering to $500,000 in most cases and $1 million in cases of catastrophic injury or death. Still, the wait for a decision in Estate of McCall v. United States continues. Should the Florida Supreme Court strike down Florida’s medical liability reforms, the healthcare environment, particularly in South Florida, may return to the abysmal condition it was in prior to the law’s enactment. At that time, ‘concern over litigation and the cost and lack of medical malpractice insurance [had] caused doctors to discontinue high-risk procedures, turn away high-risk patients, close practices and move out of state,’ as the Select Task Force on Healthcare Professional Liability Insurance found. ‘In some communities, doctors [had] quit delivering babies and discontinued hospital care.’”

The Missouri Supreme Court helped the state top this year’s Judicial Hellholes “Dishonorable Mentions” due to the overturning of its $350,000 limit on non-economic damages in medical liability lawsuits.

“In doing so the high court’s activist majority overruled 20 years of precedent that had held limits on noneconomic damages to be ‘rationally related to the general goal of preserving adequate, affordable healthcare for all Missourians.’ In effect, the court has now sided with personal injury lawyers over doctors and those who rely on accessible, affordable medical care.

“Missouri enacted the $350,000 limit on subjective damages for pain and suffering as the average award against medical care providers increased by 52 percent between 2001 and 2005. Especially for surgeons this represented the continuation of a deteriorating situation as the average payout on claims increased approximately 84 percent from 1999 to 2005. Over the same period, Missouri’s medical liability insurers experienced significant losses and had to increase premiums to avoid collapse. Those higher premiums in turn put greater financial strain on the medical community. Many physicians, particularly high-risk specialists, could no longer afford insurance and some chose to relocate as a result. The high court’s latest decision, reestablishing unlimited pain and suffering damages, threatens a return to the troubling environment doctors and their patients in Missouri suffered not long ago.”

In addition to West Virginia, Kansas and Louisiana received praise as the state’s whose Supreme Courts upheld their non-economic damage caps in cases of medical liability.