Medical Errors Rise As Tort Reform Limits Liability

February 10, 2019 GMT

For more than 40 years throughout the United States, various health care and insurance industries, backed by big business, have worked hard to push what they call “tort reform,” particularly in the area of medical malpractice. In 2002, Pennsylvania joined the malpractice tort reform movement with passage of the MCARE Act and subsequent changes to court rules governing the filing of malpractice cases. Now, with nearly two decades of experience and data to analyze, it is clear that those changes require a second look. The Pennsylvania Supreme Court is considering reversing a special privilege it conferred on hospitals and medical providers in professional malpractice cases regarding the issue of “venue,” or where malpractice cases may be filed and adjudicated. For centuries, Pennsylvania common law allowed an injured victim to choose where a lawsuit is filed, as long as it is in a county where the injury occurred, or where a defendant lived or did business. The 2003 rule change mandated that a case could only be brought where the injury took place. The primary purpose was to prevent cases from being filed in Philadelphia and to have more heard instead in the more conservative suburban counties surrounding the city. The rule change reduced the number of cases filed in Philadelphia and across the commonwealth. However, a closer look at the data from both the Supreme Court and Pennsylvania Patient Safety Authority, which was created by the MCARE Act, leads to the conclusion that tort reform has been a failure. That is because in Pennsylvania, as in every other state, medical errors have continued to climb unabated. Tort reform has yet to prevent a single injury or save a life. It has only served to diminish accountability and inflate insurance company profits. In 2016, despite the passage of tort reform laws in most states across the country, a Johns Hopkins University study determined that malpractice needlessly killed 251,000 people a year, ranking medical errors as the third-leading cause of death in America behind heart disease and cancer. On average, the Patient Safety Authority has reported more than 200,000 patient safety events every year in Pennsylvania’s hospitals, with more than 7,500 of those events causing injury or death. In comparison, only 1,500 to 1,600 malpractice lawsuits are filed annually. Meanwhile, profits for the companies that provide liability insurance to doctors and hospitals have soared. Since 2003, malpractice insurance companies have collected $4.3 billion more in premiums than they have paid out in claims to injured patients. And that figure doesn’t take into account profits they make by investing premium dollars. But injuries, deaths and the resulting lawsuits aren’t about statistics. They are about real people and the pain and suffering imposed upon them and their families. No one gave them special privileges when malpractice occurred, nor did anyone limit the cost of their treatment, aftercare, or loss of income. Moreover, the medical industry landscape has changed greatly over the years. Large hospital corporations based in Philadelphia, Pittsburgh, Danville and elsewhere have spread their tentacles into many counties beyond their home bases. They have also gobbled up individual and smaller group practices and formed their own self-insurance groups. Like malpractice insurers, they have built huge corporate offices and enriched their executives with lavish pay packages, while blaming injured victims for rising costs. In many smaller and mid-sized counties, health care providers are often the largest or near-largest employer. This poses special problems for people filing lawsuits because jurors or their family members often work for or have personal or financial links to providers who are sued. As for Philadelphia, since 2002, jury verdicts in favor of doctors and hospitals have outpaced plaintiff’s verdicts by a 2-1 ratio in most years. Still, tort reformers continue to employ scare tactics and dubious claims belied by the facts. Given Pennsylvania’s actual experience, our Supreme Court should reinstate its traditional rule regarding venue. But that is just a beginning. Policymakers must refocus efforts away from punishing victims and onto preventing needless injuries and deaths. In the absence of such meaningful change, the civil justice system must do all it can to provide full accountability to wrongdoers and fairness to victims.