Health care access jeopardized by attack on venue reform

Pennsylvania’s billboard lawyers are drooling over the potential end to a rule that requires medical malpractice lawsuits to be tried in the county where the harm is alleged to have occurred. The reform was enacted in 2003 to help stop a medical malpractice insurance crisis that was closing hospitals and sending doctors out of state. The crisis was driven by the litigation industry filing lawsuits in the most permissive jurisdictions (usually Philadelphia) rather than the local courthouse. The trial bar did this in pursuit of jackpot verdicts and to increase their leverage to coerce settlements from defendants. The excessive litigation ran up medical liability costs so high that health care providers closed their practices or fled the state -- especially those in specialty, higher risk practices -- jeopardizing health care access for all.

“Lawsuit abuse threatens the well-being of all Pennsylvanians,” said PMA President & CEO David N. Taylor. “The litigation industry must not be allowed to restart the medical malpractice crisis Pennsylvania saw at the turn of the century.”

In 2003, the Pennsylvania Supreme Court reformed the venue rule, limiting the legal action to the county where the alleged injury or cause of action occurred. A year before, the General Assembly, reacting to the liability crisis, approved the same change through the Medical Care Availability and Reduction of Error (MCARE) Act. The number of cases and awards plummeted. A reduction in the cost of medical liability insurance followed.

But the make-up of the Supreme Court has changed, and a majority of justices are now partial to the trial bar. The High Court’s Civil Procedural Rules Committee announced last January that it was considering recommending to the court that it eliminate the reform and revert to “venue shopping.”. The court agreed to hold off on any action until the Legislative Budget & Finance Committee (LBFC), a bipartisan arm of the General Assembly, investigated the results of the 2003 change.

The LBFC report was published earlier this month, and Curt Schroder, Executive Director of the PA Coalition for Civil Justice Reform, said that nothing in it supports the trial bar’s push for abandoning the current rule.

But he also cautioned it’s unclear what the Procedural Rules Committee might recommend in June, when it is next scheduled to meet.

“They are almost sure to bring up the [venue] rule for discussion,” he said. “In an ideal world, they will expand the rule (limiting cases to the county where the alleged injury occurred) to all civil action. But right now, it’s all shrouded in mystery.”

Schroder and the state’s leading health care organizations said in a statement released after the LBFC report was published that that the results of the 2003 rule change were “immediate and dramatic.”

“Statistics compiled by the Supreme Court revealed that between 2000-2002 an average of 1204 medical malpractice cases were filed in the Philadelphia courts each year,” they said. “In 2003, as a result of the venue rule reform, the number of medical liability cases filed in Philadelphia was cut in half and continued to decline every year until last year. With the fall in claims and payouts, insurance rates have fallen as well.”

Last year, the American Tort Reform Association (ATRA) crowned the Philadelphia Court of Common Pleas number one in the nation in its list of “Judicial Hellholes,” a phrase coined by one of the nation’s leading tort law experts, Victor Schwartz of Shook, Harding & Bacon.

Commenting on the possible change in the rule in Pennsylvania, Schwartz said he has never heard of a retrenchment in venue. Once it’s reformed, it stays that way.

“Clearly it’s not sound policy for a case to be decided before a jury is even impaneled,” Schwartz said. “It’s a question of basic fairness for the defendants in these cases.”

One of the most egregious examples of abuses in venue shopping involved patent trolls; trial lawyers who flocked to friendly courts in Texas where they filed specious patent infringement cases, bullying defendants for payouts.

“They’ve become known for showing up in luxury cars, ordering catered gourmet meals for their trial war rooms, and running up expensive hotel tabs,” a report by the American Bar Association Journal said.
The cases got so excessive that in 2017, the U.S. Supreme Court stepped in to limit the venues where the cases could be filed.

In Harrisburg, state Rep. Donna Oberlander (R-Clarion) has introduced House Bill 1063, which would give the General Assembly “jurisdiction determinations” over venue. In her sponsorship memo, Oberlander said she introduced the measure in response to the intention of the High Court’s Rules Committee to recommend a return to venue shopping. It’s unclear if Governor Tom Wolf, a recipient of major funds from trial lawyer political action committees, would sign the bill if it reached his desk.

If venue shopping returns, Philadelphia will become home to an even more hellish jurisdiction, or in the view of a trial lawyer, an even more “magical” one.

A magic jurisdiction is one “where the judiciary is elected with verdict money,” legendary Mississippi trial lawyer Dickie Scruggs was quoted in an ATRA “Judicial Hellholes” report as saying. “The trial lawyers have established relationships with the judges … and it’s almost impossible to get a fair trial if you’re a defendant in some of these places. … Any lawyer fresh out of law school can walk in there and win the case, so it doesn’t matter what the evidence or law is.”

ATRA noted that Scruggs built an empire of influence suing tobacco companies, HMOs, and asbestos-related companies, but has since been disbarred and was sentenced to federal prison after pleading guilty to conspiracy in an attempt to bribe a judge.

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