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

hellholes 2022

The American Tort Reform Foundation (ATRF) issued its 2021/2022 Judicial Hellholes report late last year in December. 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 every year, medical professional liability issues played a significant role in which regions received mention in the 2021/2022 Judicial Hellholes report.

The state of New York was crowned America’s Number Two Judicial Hellhole in this year’s report, in part due to a surge of “nuclear verdicts” in cases ranging from premise liability to medical malpractice. The ATRF says these awards “usually include an amount for pain and suffering that dwarfs prior verdicts and, at levels in the tens of millions of dollars, hardly serves a compensatory purpose. Rather, they result from improper tactics that inflame jurors and mislead them to believe that amounts at these levels are ordinary and acceptable in litigation.”

The Judicial Hellholes report noted that WalletHub recently ranked New York as the third-worst state for doctors, tying Massachusetts, Pennsylvania, South Dakota and Alaska for the state with the highest medical malpractice award payout amounts per capita. According to the ATRF, Chief Administrative Judge of the Courts of New York State Lawrence Mark further stacked the deck against medical liability defendants when he recently instituted a rule limiting depositions to seven hours per witness. The new rule adversely impacts malpractice defendants because the complex nature of medical liability litigation typically necessitates multiple deposition sessions with essential witnesses to tease through years of medical care and treatment as well as information concerning chronic and preexisting conditions.

The Philadelphia Court of Common Pleas and the Supreme Court of Pennsylvania were named this year’s Number Four Judicial Hellhole. The ranking is largely due to the judicial system’s announcement last year that it will consider easing a 2002 court rule that required plaintiffs to file medical liability lawsuits in the county where treatment occurred. The intent of the 2002 rule was to reduce forum shopping and create a more fair and balanced playing field. The proposed rule change would allow attorneys to also file medical malpractice suits in jurisdictions where the healthcare provider operates an office or where a physician lives, among other options. According to the ATRF, plaintiffs will flock to areas like Philadelphia, where juries are more willing to award higher verdicts in favor of plaintiffs.

The city of St. Louis ranked as this year’s Number Seven Judicial Hellhole due to remaining uncertainties about the state’s standard for punitive damages in medical liability cases. The Missouri Legislature passed a law in 2020 intended to restrict punitive damages to cases in which the plaintiff showed “by clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.”

Despite the new law, the Missouri Supreme Court upheld a circuit court’s application of a lesser standard for the award of punitive damages in a March 2021 medical malpractice case. In Rhoden v. Missouri Delta Med. Ctr., the high court ruled that “acting willfully, wantonly, or maliciously is equivalent to acting with a complete indifference to or in conscious disregard for the rights or safety of others.” The court concluded that plaintiffs made a submissible case for punitive damages by alleging that a doctor knowingly and incorrectly informed a patient that his two treatment options were prostate surgery or self-inserting catheters for the rest of his life. Considering the patient’s high risk for surgery, the doctor did not explore non-invasive treatment options, which constituted a complete indifference to or conscious disregard for the patient’s safety.

The Judicial Hellhole report features a “Watch List” section to call attention to jurisdictions that bear watching because they may be moving closer to, or further away from, designation as a Judicial Hellhole. Colorado appeared on this year’s Watch List due to its appellate courts allowing what the ATRF considers scientifically dubious expert testimony and its legislature’s “propensity to enact liability-expanding legislation.”

To illustrate, the 2021/2022 report highlights a pair of Colorado birth-injury cases that significantly diminished the role Colorado judges play in evaluating the reliability of expert evidence. In both cases, plaintiffs’ lawyers tried to introduce questionable expert testimony asserting that healthcare providers’ use of a medication to induce contractions and failure to conduct an earlier Cesarean section led to a child’s birth with brain damage.

Two trial courts excluded expert testimony proposed by the plaintiffs that would have attributed the baby’s condition to cranial compression ischemic encephalopathy, a theory that prolonged, frequent compression of a child’s head during contractions can decrease oxygen and blood flow to the child’s brain during delivery. These courts, consistent with the positions of the American College of Obstetrics & Gynecologists and the American Medical Association, found the theory insufficiently supported by science to be admissible in court. Nevertheless, in both cases, the Colorado Court of Appeals reversed the trial courts. The appellate court found that despite the lack of published articles and testing supporting the theory, the state applies a “liberal admission standard” for expert testimony, which allows the case to proceed to trial. According to ATRF, this approach is contrary to the gatekeeping function of the courts, which gives judges the responsibility of screening out made-for-litigation science. In September, the Colorado Supreme Court refused to review one of the cases, leaving the door open to junk science in Colorado courtrooms.

After spending the last three years on the Judicial Hellholes list, Minnesota was moved to the Watch List this year. Despite the improvement, the ATRF reiterated the state’s medical malpractice laws are among the most plaintiff-friendly in the country. The ATRF specifically points to the state’s four-year statute of limitations, lack of a noneconomic damage cap and ability of malpractice plaintiffs to sue for a “loss of chance” as lopsided in favor of the plaintiff.

The 2021/2022 report also took issue with Minnesota’s continued reliance on the Frye standard for evaluating expert testimony. The state is one of only seven still using the standard, which the ATRF considers weaker than the Daubert standard employed in 40 other states and the District of Columbia. And a ruling by the Minnesota Supreme Court in 2020 opened the door to third-party litigation financing.

Although the court of special appeals reversed the $229 million medical malpractice verdict against Johns Hopkins Bayview Medical Center that initially landed the state on the Watch List last year, Maryland retains the distinction because the ATRF still considers its medical liability climate unstable. According to the report, “the fact that a Baltimore County jury rendered such an extreme verdict creates uncertainty about the risks of insuring the state’s urban doctors.”

The Judicial Hellholes report features a Points of Light section that highlights noteworthy actions taken by judges and lawmakers to stem abuses of the civil justice system. The Missouri Supreme Court earned this praise for its July 2021 decision upholding the state’s noneconomic damage cap in medical liability cases. The Texas Supreme Court received a Points of Light mention for its decision preventing phantom damages. The North Carolina Supreme Court received Points of Light inclusion for declining to recognize a claim for “loss of chance” because it would “require a departure from our common law on proximate causation and damages.”

The ATRF also gave Points of Light recognition to the 20 states enacting laws in 2021 to protect healthcare providers, businesses, schools, manufacturers of personal protective equipment and others from claims during the COVID-19 pandemic. According to the ATRF, these laws strike a balance that protects public safety while reducing the threat of lawsuits against individuals and organizations providing vital medical care, products and services during the pandemic.

More than two-thirds of all states have now enacted COVID-19-related tort legislation that raises the standard for medical liability cases above ordinary negligence. State legislation varies in how it defines eligibility for liability protection (healthcare professionals, facilities or both), the scope of conduct covered (directly treating COVID-19 patients or other care impacted by a lack of resources due to the pandemic), exceptions for coverage (such as whether nursing homes are included) and the conduct that remains subject to liability (such as gross negligence).

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