Tag Archives: Pennsylvania

Pennsylvania Supreme Court to Rule on Medical Malpractice Jury Instructions

The Pennsylvania Supreme Court is set to hear a case that will have a significant impact on how medical malpractice lawsuits are handled in the Commonwealth. At the heart of the case is whether a jury should be instructed that an “error in judgment” does not constitute negligence/medical malpractice.

In the case being heard by the Pennsylvania high court involves an infant who underwent multiple treatments for gastroesophageal reflux in 2001. After several appointments with the defendant pediatrician and no physical improvement in the infant, the parents brought the child to the emergency room. The infant was in severe respiratory distress, and the child died soon after. The autopsy revealed the cause of death as diffuse viral myocarditis, a viral infection of the heart.

The parents sued the pediatrician for medical malpractice. At the medical malpractice trial, the jury was instructed that “a mere error in judgment” does not constitute negligence/medical malpractice. The jury rendered a verdict in favor of the defendant pediatrician.

At the same time as the trial, another medical malpractice case involving a damaged infant was being tried. Similarly, the judge instructed the jury — after all evidence had been submitted and prior to deliberation — that “physicians who exercise the skill, knowledge and care customarily exercised in their profession are not liable for a mere mistake of judgment. Under the law, physicians are permitted a broad range of judgment in their professional duties, and they are not liable for errors of judgment unless it is proven that an error of judgment was the result of negligence. And folks, as a general proposition that applies in any case, doctors or physicians do not guarantee a cure to their patients, and negligence should not be presumed from the occurrence of an unfortunate result.”

In this second case, the jury also rendered a verdict in defense of the defendant physician. The plaintiffs appealed their medical malpractice case, and the Pennsylvania Superior Court reversed the lower court’s ruling, remarking that the original judge should not have given the “error in judgment” instruction to the jury. This opened grounds for appeal in the first case.

Now the Pennsylvania Supreme Court is expected to decide which lower court’s ruling is proper. Should juries be instructed that “a mere error in judgment” does not constitute medical malpractice? Or does that instruction confuse juries when contemplating whether a physician’s conduct is within the standard of care. The ruling will have significant bearing on how medical malpractice cases are presented in Pennsylvania in the future.

Number of Pennsylvania Medical Malpractice Claims Continues to Drop

According to a new report from the Administrative Office of Pennsylvania Courts, the number of reported Pennsylvania medical malpractice claims in 2011 is at least 40 percent lower from the state’s high water mark of 2000 to 2002. This is the fourth consecutive year that the number of claims has been at least 40 percent lower than the years 2000 to 2002.

According to the new report, the number of medical malpractice claims filed in Pennsylvania for 2001 was 1,528, or 44.1 percent less than the average number of medical malpractice claims filed annually between 2000 and 2002.

Many medical malpractice pundits credit the decrease in claims frequency to tort reforms that the Commonwealth legislated in 2002 and went into effect in 2003. The legislation allows medical malpractice damages to be paid over time, eliminates the practice of venue shopping, created more stringent requirements for expert witnesses, a strict certificate of merit requirement and established a seven-year statute of limitations for filing a medical malpractice lawsuit.

According to those who track Pennsylvania’s medical malpractice data, the most effective of the state’s 2002 medical liability tort reforms have been the certificate of merit requirement and the elimination of venue shopping.

The Pennsylvania certificate of merit requirement mandates that when any legal action alleging that a healthcare professional deviated from an acceptable professional standard is filed, it must be followed within the following 60 days by the submission of a certificate of merit letter—signed by a healthcare professional practicing in a similar specialty—that states that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm. The success of this reform can be seen in the dramatic drop in claims frequency. The certificate of merit requirement effectively restricted access to the courts for large numbers of frivolous lawsuits.

Pennsylvania’s 2002 venue shopping reform dealt with the practice of filing a medical malpractice lawsuit in court districts that have little relation to the cause of action or the defendant, but that have a history of favoring plaintiffs. In Pennsylvania, that jurisdiction had most commonly been Philadelphia. The City of Brotherly Love has the dubious reputation of being consistently on the American Tort Reform Association’s Judicial Hellhole List, which annually ranks the most plaintiff-friendly court jurisdictions in the nation. Philadelphia was No. 1 on the Judicial Hellhole list for 2011. Looking at the data compiled by the Administrative Office of Pennsylvania Courts, the success of the venue shopping restriction is impressive. Previous to the restriction, an average of 1,365 medical malpractice claims were filed in annually in Philadelphia; in 2010, the number had fallen to just 381.

More than Half of All Medical Malpractice Indemnity Payments Were Made by Six States

A recently released study of all medical malpractice payments made in 2011 indicates that six states accounted for more than half of all medical malpractice indemnifications. The analyzed data came from the National Practitioner Data Bank

That is an astonishing statistic. Which six states accounted for more than half of all medical malpractice indemnity payments is not a surprise. The highest malpractice payout was New York, followed by Pennsylvania, Illinois, New Jersey, Florida and California.

Not coincidentally, the states with the highest medical malpractice indemnity payments also have some of the highest medical malpractice insurance premiums. In some parts of New York and Florida, an obstetrician can be paying in excess of $200,000 in annual base rate medical liability premium.

Looking at base rate premiums in California, one can see how tort reform can keep medical malpractice insurance premiums affordable. While California paid out the sixth largest dollar total in medical liability indemnity, its medical malpractice insurance rates are comparatively inexpensive. An obstetrician practicing in the state’s most expensive county (Los Angeles County) for medical malpractice insurance can pay as little as $38,050 in base rate premium. The most expensive annual base rate premium in Los Angeles County hovers around $80,000. Compared to New York and Florida, those numbers are a steal.

The California Medical Injury Compensation Reform Act (MICRA) has long been the gold standard in medical liability tort reform. Enacted in 1975, the law caps non-economic, pain-and-suffering damages at $250,000. The law also has other requirements that are intended to weed out frivolous lawsuits.

Other interesting statistics found in the study of 2011 medical malpractice payments include:

• The six states that make up the bottom of the malpractice indemnity payments (South Dakota, Vermont, Wyoming, North Dakota and Alaska) make up less than 1 percent of of total payouts.

• Slightly more than 36 percent of all medical malpractice indemnity payments are made to patients age 40 to 59 ($1.3 billion) , followed by patients age 20 to 30 ($786.3 million).

• In total, 58 percent of all medical malpractice indemnity payments were made to women; 42 percent of all indemnity payments were made to men.

• Medical malpractice indemnity payments have been declining since 2003.

• The total dollar amount of 2011 medical malpractice indemnity payments were slightly less than they were in 2010.

Venue Shopping Behind Philadelphia's High Medical Malpractice Insurance Rates

side note: The link below will direct you to the American Tort Reform Foundation’s 2012 list of Judicial Hellholes, which documents in annual reports various abuses within the civil justice system. Philadelphia was ranked No. 1 on this year’s Judicial Hellholes list. Because a county’s medical malpractice insurance rates are determined largely by the attitude of its court system and the tort laws it is governed by, it should no surprise that Philadelphia physicians pay medical malpractice insurance rates that are amongst the most-expensive in the nation. The average obstetrician practicing in Philadelphia is paying between $110,000 and $190,000 annually for medical liability protection.

The Judicial Hellholes report cited Philadelphia’s disproportionate share of Pennsylvania’s lawsuits due to trial attorneys forum shopping for plaintiff-friendly courts. The report specifically points an accusing finger at the Complex Litigation Center in Philadelphia, where judges have actively sought to attract personal injury lawyers from across the state and the country. Plaintiff-friendly law, expedited procedures, a reputation for a high plaintiff-win rate and generous awards contribute to Philadelphia’s status as a venue of choice.

This trial attorney strategy is commonly referred to as “venue shopping,” the practice of plaintiffs filing suit in jurisdictions that historically have produced large awards in medical malpractice lawsuits, regardless of where the alleged negligence actually occurred. Thankfully, the Pennsylvania General Assembly has taken notice and is trying to pass legislation intended to keep trial attorneys from unfairly seeking an advantage by filing their lawsuits in jurisdictions they perceive to be plaintiff-friendly, e.g. Philadelphia.

House Bill 1552 is designed to keep plaintiffs’ attorneys from unfairly seeking an advantage by filing their lawsuits in plaintiff-friendly jurisdictions. The bill would force all personal injury lawsuits to be filed in the county where the respective cause of action first arose. In other words, if a plaintiff suffered an injury in Lancaster County, he or she would have to file their negligence claim in that county’s court of common pleas. Experts expect that — should this bill pass — it would have a deflationary effect on medical malpractice insurance rates.

Tort reform supporters testified before the Pennsylvania House Judiciary Committee that, at the very least,  venue shopping is unfair to local taxpayers who end up providing court resources for the benefit of plaintiffs, often from out of county, with little or no connection to the jurisdiction. It is unfair to the Philadelphia medical community as venue shopping has increased their medical malpractice insurance rates. Jobseekers also suffer, they testified, when employers decide to relocate their facilities and operations away from jurisdictions that become known as destinations for costly “litigation tourism.”

Click here to read about why Philadelphia is the 2012’s No. 1 Judicial Hellhole.

ATRA Releases Annual List of Juducial Hellholes, Motivates Medical Malpractice Reform

side note: This week, the American Tort Reform Association (ATRA) released its annual Judicial Hellholes Report. Since 2002, the Judicial Hellholes Report has documented in annually published reports various abuses within the civil justice system, focusing primarily on jurisdictions where courts are radically out of balance. This list has been an invaluable tool in educating state and local politicians about out-of-control jurisdictions that impede business and threaten access to healthcare. It has also motivated legislative reform of medical malpractice laws across the country.

No surprise, Philadelphia topped the Judicial Hellholes list for 2011/2012. Known for its tradition of venue shopping, weak joint-and-several liability as well as disproportionate jury verdicts, the City of Brotherly Love has been in the ATRA’s sites for some time. Of course, South Florida made the list as well as perennial Hellholes like Cook, Madison and St. Clair Counties in Illinois.

What’s new to this year’s report is an expanded “Points of Light” section, where states that have made tort reform advances get their props. And this year, there has been a lot of tort reform props to go around.

This year might someday be looked back upon as the year of tort reform. Riding a red wave of conservatism in the 2010 elections, new Republican majorities in statehouses across the country tackled lawsuit reform with gusto. More than 40 new tort reform measures passed in states across the country, including “big wins” in Alabama, Arizona, North Carolina, Oklahoma, South Carolina, Tennessee, Texas and Wisconsin, among others.

Washington, DC, December 15, 2011 — The American Tort Reform Association today released its annual Judicial Hellholes report, documenting abuses of the civil justice system in jurisdictions it says are among the most unfair and out-of-balance in the nation.

Editor’s note: This article was removed from the ATRA’s website. Here is a link to the full report.

Pennsylvania Passes Fair Share Act to Bring Down Medical Malpractice Insurance Costs

side note: This is big news for Pennsylvania. Long a hostile medical liability climate, the state’s new governor made good on his promise to address Pennsylvania’s tort laws. What effect will the “Fair Share Act” have on medical malpractice insurance costs? It will likely be several years before the new legislation has an impact on premiums, but it should have a deflating influence.

On June 28, 2011, Pennsylvania Governor Tom Corbett signed the highly controversial Act 17 of 2011 into law. This legislation has become popularly known as “The Fair Share Act,” as Defendants found to be less than sixty percent (60%) at fault in particular litigation are only to be responsible for paying their percentage of apportioned fault. Described in another way, the legislation protects a Defendant from having to make full payment on damages should another liable Defendant not have the resources to pay their share of the liability. The legislation applies to “all actions brought to recover damages for negligence resulting in death or injury to person or property.”

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Pennsylvania Gov. Corbett Signs ‘Fair Share Act,’ Ends Practice of Joint-And-Several Liability

side note: Always a complicated market for medical malpractice insurance, Pennsylvania Gov. Corbett ends joint-and-several liability with the signing of the Fair Share Act..

Pennsylvania Gov. Tom Corbett recently signed into law Senate Bill 1131, better known as the “Fair Share Act,’’ which reforms how damages are recovered in civil lawsuits, ensuring an equitable framework for litigation in the future. The passage of pro-business, pro-healthcare tort reform measures was one of Corbett’s 2010 campaign promises.

Pennsylvania Med Mal Cases Down

Side Note: The state of Pennsylvania is currently reaping the benefits of some terrific med mal tort reform that went into effect in 2002. The Pennsylvania med mal reform, aimed at reducing the number of frivolous lawsuits that make it to court, is working. According to the article, since 2002, the number of Pennsylvania med mal cases has dropped by an average of 45.4 percent. In addition, the courts’ number of rulings in favor of health care defendants has risen, too, from 73 percent to 80 percent.

The Pennsylvania med mal reform enacted asks that a lawyer filing a medical malpractice case also file a statement by a medical expert attesting to the med mal case’s worthiness. And, the state also now requires that Pennsylvania med mal cases be filed in the county in which they occurred –no longer can lawyers “shop” their cases around to the most “plaintiff-friendly” counties.

Pennsylvania is a nice example of what good tort reform can accomplish. Reasonable legislation like this can save everyone (physicians, patients, the courts) significant time and money. In addition, the article mentions how the tort reform has also helped to stabilize Pennsylvania med mal rates. We here at MyMedicalMalpracticeInsurance.com have seen the same trend. We have closely followed the price of Pennsylvania liability rates for the past ten years (along with every other state in the US). You may want to view the rates on our site.

Would you like to lower your Pennsylvania professional liability costs? Contact us today for a free no-cost, no-obligation quote.

Suits against doctors, hospitals lowest in a decade
By Peter Hall, OF THE MORNING CALL
Posted May 18, 2011 on mcall.com

Physician thinking about Pennsylvania medical malpractice ratesThe number of medical malpractice cases against Pennsylvania doctors and hospitals dropped in 2010 to the lowest point since the state’s high court enacted new rules designed to prevent frivolous lawsuits.

Statewide, the number of malpractice cases decreased by 45.4 percent from the average before the new rules took effect in 2002. Juries also returned verdicts in favor of defendant health care providers in more than 80 percent of cases statewide, up from an average of about 73 percent, according to data released Wednesday by the Administrative Office of Pennsylvania Courts.

Original article can be found here.

Pennsylvania Governor Rendell Vetoes Bill that would Modify MCare

Side note: The Governor of Pennsylvania, Edward G. Rendell, recently vetoed Senate Bill 1280. Bill 1280 would modify Act 13 of 2002, the Medical Care Availability and Reduction of Error Act, or MCare, by freezing primary medical malpractice insurance limits for seven years. The Bill also would adjust the formula for determining the assessments by which McCare is funded. Rendell vetoed the Bill since he saw it as a threat to all of the progress that the state has made over the last decade making medical malpractice insurance affordable to the medical community of Pennsylvania.

Governor Rendell Vetoes Legislation: MCare Changes Not Good for Providers or Patients
Bill Needs More Study, Analysis, Public Input

Governor Edward G. Rendell today vetoed Senate Bill 1280 noting the proposed legislation would destabilize the medical malpractice market, affecting physicians, other health care providers and ultimately the quality of care available.

“Senate Bill 1280 fails to recognize the noteworthy progress we have made in Pennsylvania’s medical malpractice insurance marketplace,” said Governor Rendell. “The bill would cause extreme swings in the MCare assessment from year to year, which would be detrimental to providers, would destabilize the medical malpractice market, and would create a crisis atmosphere that would undermine the commonwealth’s continuing ability to retain and attract physicians and other health care providers to Pennsylvania. None of this is prudent or in the best interests of Pennsylvania or its citizens.

“Even more disconcerting is the fact that the proposed legislation would bring innovation in the marketplace to a complete halt for the next several years without evidence that this is needed and without an assessment of how this might impact our medical providers.”

Read the Rest of the Article

Pa. woman sues over drink-fueled leg amputations

side note: In this case, a woman was brought to a hospital passed out from alcohol intoxication. In her medical malpractice lawsuit, she claims that she was left slumped in an awkward position, cutting off blood flow to her legs. Her legs needed to be amputated, and now she is suing for malpractice.

UNIONTOWN, Pa.—A western Pennsylvania woman who drank herself unconscious celebrating her 20th birthday says a hospital didn’t properly treat her resulting in partial amputations of both of her legs.

Shanna Hiles’ medical malpractice suit against Uniontown Hospital and one of its emergency physicians says she passed out while sitting on the floor with her legs tucked under her in May. Hiles was in that position for more than 12 hours, and she claims hospital officials didn’t properly diagnose her condition and work to restore circulation to her legs.

Instead, Hiles claims she was transferred to a Pittsburgh hospital several hours later where both legs were amputated at the knee.

A hospital spokeswoman has declined comment on the suit filed Tuesday.

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