ATRF Publishes Annual ‘Judicial Hellholes’ Report, Medical Professional Liability Again Plays Determining Role
The American Tort Reform Foundation (ATRF) issued its 2022/2023 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 every year, medical professional liability issues played a significant role in which regions received mention in the Judicial Hellholes report. Following is a summation of the medical liability portions of the annual report.
The state of Georgia was christened America’s Number One Judicial Hellhole by the ATRF, partly due to its court system being “one of the most prolific producers of nuclear verdicts nationwide.” The foundation considers awards exceeding $10 million to be nuclear verdicts and cites statistics indicating there were 53 such verdicts totaling more than $3 billion between 2010 and 2019. The report singled out a $75 million medical liability verdict (including $9 million for past medical damages, $20 million for future medical expenses and $46 million for pain and suffering) awarded last year in Fulton County Superior Court as a recent example of Georgia’s nuclear verdict problem.
The Supreme Court of Pennsylvania and Philadelphia Court of Common Pleas share the Number Two slot in this year’s Judicial Hellholes report. The high court received the nod for eliminating its venue rule for medical liability lawsuits, which will likely lead to a drastic increase in medical liability litigation in some of the commonwealth’s most plaintiff-friendly courts. The ATRF considers the move “perhaps the most disappointing decision in 2022.”
“The Supreme Court of Pennsylvania eliminated constraints that have prevented lawyers from picking the most plaintiff-friendly jurisdiction for filing medical liability actions,” the report’s authors wrote. “At issue was a 2002 court rule that required plaintiffs’ lawyers to file medical liability lawsuits in the county where treatment occurred, not where a jury is expected to view the claim most favorably or return the largest award. The purpose was to reduce forum shopping and create a more fair and balanced playing field. Excessive medical liability drives up doctors’ insurance expenses, increases costs for patients and reduces the public’s access to healthcare.
“In light of the newly relaxed venue restrictions, attorneys are able to file suit for medical malpractice in jurisdictions not only where medical treatment took place, but also where the healthcare provider operates a hospital or office or where a physician lives, among other options. Of course, the state’s personal injury bar, through the Pennsylvania Association for Justice, supported the change. Plaintiffs will now flock to areas like Philadelphia, where juries are more willing to award higher verdicts in favor of plaintiffs.”
The report cites an Oliver Wyman actuarial review from June 2022 predicting that, should the venue rule be eliminated, urban areas would see higher caseloads from both neighboring county transfers and speculative cases seeking to take advantage of the higher probability of success in those courts. The analysis also predicted that hospital liability premiums would increase by 3.1% to 4.7% on average and that physicians stood to see a 4.9% to 7.2% increase in their insurance costs on average.
According to the Judicial Hellholes report, Pennsylvania endured 78 personal injury and wrongful death nuclear verdicts between 2010 and 2019, accounting for more than $11 billion in damages. Medical malpractice and product liability cases accounted for 60% of the astronomical awards. The Philadelphia Court of Common Pleas was acknowledged for hosting more than half of the commonwealth’s nuclear verdicts during the period.
New York ranked as this year’s Number Four Judicial Hellhole, in part due to its litigation climate contributing to “the state being one of the worst for doctors.”
“New York is now the second worst state for doctors, after previously coming in at No. 3, according to an annual ranking by WalletHub,” the report’s authors noted. “The state also ranks first in two categories: highest malpractice award payout amounts per capita and most expensive annual malpractice liability insurance. The average payout of a neck/back injury rose from $3.8 million in 2015 to $6.8 million in 2019. During the same time period, a brain injury award increased by 560% from $5 million to $27 million.”
The authors attribute the high payouts to New York being one of only 15 states that have no restrictions on the size of damage awards. It also has no standards regarding minimum expert witness qualifications and has legislation pending that would circumvent attorney contingency fee restrictions after a successful medical malpractice case. Should the contingency fee legislation pass, the authors believe “New York’s malpractice liability insurance [costs] and award payout will increase even more.”
The report features a “Watch List” section to call attention to jurisdictions that bear watching because they may be moving closer or further away from, designation as a Judicial Hellhole. The Texas Court of Appeals for the Fifth District appeared on this year’s Watch List partly due to its “leaving discovery abuse unchecked.”
As an example of discovery abuse by the Fifth Court, the authors cited a medical liability case in which “a plaintiff attempted to compel a healthcare provider to provide copies of its policies and procedures at an early stage in the litigation, something not provided for by the Texas Medical Liability Act, and the Fifth Court allowed it.” The Texas Supreme Court unanimously overruled the appellate court, clarifying that Texas law restricts pre-expert report discovery to the patient’s medical records in order to protect healthcare providers from costly discovery prior to the plaintiff justifying the claim by obtaining an expert opinion that the applicable standard of care was violated. As the Texas Supreme Court observed, the expert report requirement “is intended to separate potentially meritorious healthcare liability actions from frivolous ones.”
While the Judicial Hellholes report criticized the appellate court for developing “a reputation for being pro-plaintiff and pro-liability expansion,” it did praise a Fifth Court panel for refusing to apply a court-made discovery rule to extend the statute of limitations for healthcare liability claims beyond two years, determining the rule is not viable because it “conflicts with the state’s strict formulation for determining the accrual date for the statute of limitations on medical malpractice claims.”
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 Maryland Court of Appeals, the state’s highest court, earned this praise for declining to adopt the “loss of chance” doctrine in a July 2022 medical liability case, determining that its “relaxed causation framework directly conflicts with the statute’s traditional standard, which requires a plaintiff to show that a defendant’s negligence more likely than not caused the plaintiff’s injury.”
According to the ATRF, “the loss of chance doctrine permits a relaxed standard for causation in the medical malpractice context, allowing plaintiffs to recover for the lost chance of a better outcome, such as surviving longer, even if the outcome would likely be the same regardless of a delay in a diagnosis.” The state’s top court had previously held that the Maryland Wrongful Death Act does not permit loss of chance claims, and the trial court applied this precedent to dismiss a claim speculating that had a doctor immediately followed up on abnormal CT scans, his wife, who had metastatic breast cancer, would have lived 30 months longer. Both parties’ experts agreed that a metastatic breast cancer diagnosis was a “death sentence,” regardless of the discovery timeline.
Upon appeal, the widower asked a Court of Special Appeals panel to disregard precedent and find the loss of chance doctrine compatible with the state’s wrongful death statute. The panel declined. Before the entire Court of Appeals, the plaintiff argued his claim no longer fell under the loss of chance doctrine because he was seeking damages for his wife’s “concrete period of life,” rather than her “natural life expectancy.” The majority opinion determined the argument was a “collateral attack on our previous loss of chance decisions” and rejected the claim.