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

The American Tort Reform Foundation (ATRF) issued its 2023/2024 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 United States. 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/jurisdictions received mention in the Judicial Hellholes report. Following is a summation of the medical liability portions of the annual dispatch.

The Supreme Court of Pennsylvania and the Philadelphia Court of Common Pleas tied with the state of Georgia as this year’s No. 1 Judicial Hellhole. The two Pennsylvania courts received recognition largely due to their rising numbers of nuclear verdicts and medical liability lawsuits, their support of litigation tourism and the high court’s repeated expansion of civil liability. Both Pennsylvania courts tied for the No. 2 spot on last year’s Judicial Hellholes list. The Supreme Court was singled out at the time for opening the commonwealth’s medical-liability venue rule to lawsuits beyond where the at-issue medical treatment took place. Plaintiff attorneys can now file medical liability claims in any jurisdiction where the physician has a home, operates an office or has hospital admitting privileges, which the 2022/2023 report called “perhaps the most disappointing decision in 2022,” warning it would lead to a drastic increase in the number of medical malpractice lawsuits filed in Pennsylvania’s most plaintiff-friendly jurisdiction, i.e., the Philadelphia Court of Common Pleas.

“As expected, new medical liability filings are surging in Philadelphia,” the authors of the 2023/2024 report wrote. “Through October 2023, there was a 108% increase in filings (468) when compared to the same time last year (225). From 2017 to 2019, plaintiffs suing healthcare providers in Philadelphia County won at a 36% rate, compared to a 12% and 9% rate in nearby Montgomery and Lancaster counties, respectively. As a result of the elimination of the rule, cases filed against health systems in a variety of different counties across the state have now been refiled in Philadelphia.”

According to the ATRF, Pennsylvania’s medical malpractice insurance rates have predictably increased since the venue rule was changed. The report cites a May 2023 letter from the Pennsylvania Coalition for Civil Justice Reform to the commonwealth’s Supreme Court, which alleges physician “manual rates have been increased by specialty, with a minimum increase of 10.5% and a maximum increase of 16.1%.”

The Philadelphia Court of Common Pleas received its recognition for being Pennsylvania’s most prolific generator of nuclear verdicts, which the ATRF defines as judgments of $10 million or more.

“Between 2017 and 2019, seven-figure awards made up 3% to 7% of all Philadelphia verdicts,” the report’s authors wrote. “In 2022 and 2023, it grew to 11% of all verdicts. The percentage of plaintiff victories has likewise grown in Philadelphia from 41% in 2017 to 52% in 2023.”

Citing research conducted last year by the U.S. Chamber of Commerce’s Institute for Legal Reform, the report notes that Pennsylvania had 78 personal injury and wrongful death verdicts of $10 million or more between 2010 and 2019. These verdicts totaled more than $11 billion in damages, with a median value of $20 million per verdict. The commonwealth ranked third in per capita nuclear verdicts and fifth in total nuclear verdicts. Medical malpractice and product liability cases pose the greatest risk of generating a nuclear award, accounting for more than 60% of Pennsylvania’s verdicts of $10 million or more. The Philadelphia Court of Common Pleas was the venue for more than half of the commonwealth’s nuclear verdicts.

A reputation for generating nuclear verdicts similarly helped Cook County, Ill., earn its No. 2 spot on this year’s Judicial Hellhole list. According to the report, Illinois ranked sixth among states for personal injury/wrongful death verdicts of $10 million or more and fourth for nuclear verdicts per capita. The Cook County Circuit Court hosted two-thirds of those verdicts.

“There have been 13 nuclear verdicts reported in Illinois since 2022 ranging from $10.5 million to $363 million, and all but one came from Cook County,” the report’s authors wrote. “Many of these verdicts were in medical liability cases.”

The report notes a $19 million wrongful death lawsuit against St. Bernard Hospital (April 2023), a $28.7 million wrongful death lawsuit against Gottlieb Memorial Hospital (May 2023), a $32.7 million medical malpractice lawsuit against Central Dupage Emergency Physicians (October 2023) and a $55.5 million medical malpractice lawsuit against University of Illinois Hospital (October 2023) as evidence of Cook County’s nuclear verdict crisis.

New York City placed No. 4 on this year’s Judicial Hellhole list, in part for its substantial number of verdicts coming in at $10 million or more. According to the report, New York recorded 151 nuclear verdicts between 2010 and 2019, totaling more than $5 billion, the second most nuclear verdicts per capita. Almost a quarter (22.5%) of those verdicts were concentrated in medical liability.

The report notes that things could get a lot worse for New York’s healthcare industry should Gov. Kathy Hochul sign the Grieving Families Act recently passed by the New York State Legislature. Hochul vetoed a similar version of the bill last year that would have extended New York’s statute of limitations for wrongful death lawsuits from two years to three and a half, permitted surviving family members to collect noneconomic damages for the loss of affection and companionship, and opened the door for nontraditional family members to seek compensation. It would have also applied retroactively. Under current New York law, compensable damages in wrongful death actions are limited to economic loss only. The report references a study by Milliman Inc. that indicates the Grieving Families Act could increase medical professional liability costs by 40% should it become law.

As a result of liability-expanding decisions by the Michigan Supreme Court and pro-plaintiff activity by the state legislature, the capital city of Lansing, Mich., made its Judicial Hellholes debut at No. 6 on this year’s list. The authors of this year’s report cite the court of last resort’s determination in July 2023 that “while an affidavit of merit is required for a medical liability case to proceed, it does not need to be filed within the statute of limitations” as justification. The decision overturned a 23-year-old precedent that had required an affidavit of merit to initiate a medical liability lawsuit.

Kentucky appeared on this year’s Judicial Hellholes “Watch List” partly due to the jump in large-dollar medical liability lawsuits since its Supreme Court determined the commonwealth’s medical review panel tort reforms were unconstitutional five years ago. The report cites a record-setting $44.5 million medical malpractice verdict against an oncologist in August 2023 and the bankruptcy of a surgical clinic after a $21.3 million medical liability award in August 2022 as evidence Kentucky “could land among the hellhole ranks in coming years.”

“The trend of rising damages in medical lawsuits is exacerbated by Kentucky courts allowing plaintiffs to recover phantom damages for billed medical costs that are written off or reduced by insurers or other third parties,” the report’s authors write. “With an effective filter for insignificant medical lawsuits dismantled, a rise in substantial verdicts and a practice of awarding phantom damages, a troubling litigation climate may be brewing in Kentucky’s medical liability sphere.”

In a special “Closer Look” section of this year’s report, the authors detail a nationwide campaign by the plaintiffs’ bar to expand liability under state wrongful death acts. They note at least 11 states considered legislation during the past year that would have broadened the range of people to sue, expanded recoverable damages for emotional harm, raised or eliminated damage caps, authorized punitive damages or lengthened the statute of limitations for bringing such claims. Five of those states expanded wrongful death liability last year: Maine raised the amount recoverable for loss of comfort, society and companionship, including emotional distress, from $750,000 to $1 million, which will automatically increase each year for inflation, and increased the law’s punitive damages maximum from $250,000 to $500,000; Delaware and Illinois added the threat of punitive damages in wrongful death claims; Minnesota altered its wrongful death and survival statutes to permit recovery beyond economic losses; and Rhode Island increased its unique minimum recovery in wrongful death actions from $250,000 to $350,000.

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