Author: Joel I. Fishbein
Medical malpractice lawyers, claims professionals and risk managers recently received comprehensive information from two sources about the medical claims environment in Pennsylvania during the 2011 year. First, in the 2012 Medical Malpractice Payout Analysis – Southeast Edition, a report released by Diederich Healthcare, we learned that data taken from the National Practitioner’s Data Bank (NPDB) shows that Pennsylvania experienced the 2nd highest dollar amount of medical malpractice claims payouts, with a total of $319,710,250 paid out to 903 claimants in 2011. Second, the Pennsylvania Supreme Court released its medical malpractice filings and jury verdict statistics for 2011.
We see from the report of jury verdicts that, throughout the Commonwealth of Pennsylvania, there were 110 jury verdicts in medical malpractice cases in 2011. Of those, 78 (or 70.9%) resulted in defense verdicts in 2011. Even in Philadelphia, where only 25 cases were tried to verdict in 2011, 14 (or 56%) were in favor of the defendants. However, 7 of the 12 plaintiffs’ verdicts were for more than $1,000,000 and two of them were for greater than $10,000,000. Outside of Philadelphia County, 75.2% of the jury verdicts rendered in 2011 were in favor of the defense, and of the 21 non-Philadelphia plaintiffs’ verdicts, only 9 were for more than $1,000,000.
By comparing the payout analysis to the jury verdict data, we can see that there were approximately 9 times the number of cases settled in 2011 than tried to verdict. Also, by comparing the Pennsylvania Supreme Court’s filing data with its verdict information, it is clear that Allegheny County cases are significantly more likely to settle than be tried to verdict than those in any other county: filings there are relatively high and cases tried to verdict are extraordinarily low.
This information is important when contemplating settlement strategy in current cases and when considering the need for further tort reform.
The most significant element of tort reform in Pennsylvania was the tightening of the venue rules. The new rules permit actions to be filed only in the county in which the cause of action arose. This eliminated the pattern of plaintiffs filing in Philadelphia County if any defendant had ties to Philadelphia, without regard to the location of the alleged malpractice. As a result of this initiative, there was a dramatic reduction in filings of medical malpractice complaints in Philadelphia County. In 2011, the filings were down 65% from the average for the three years preceding the enactment of the venue reform.
The small number of large verdicts throughout the state suggests that there is no need to adopt caps on damages. However, there is some evidence that the venue rules are being circumvented by the inclusion of Philadelphia defendants in cases with which they have tenuous ties—and then dismissing these defendants before trial. This is resulting in more cases being tried in Philadelphia than was contemplated when the venue rules were changed. Extra attention should therefore be paid by defense attorneys to ensure that the defendants whose ties to Philadelphia justify venue in Philadelphia County are removed, if possible, early enough to permit venue to be transferred the appropriate county before trial. Also, there may be a need for further rule changes or penalties to ensure that plaintiffs are not including Philadelphia defendants solely to contravene the intent of the rule changes.
The claims payout data is not broken down by county, so it is not possible to ascertain what percentage of the settlements that resulted in payouts were for cases filed and properly venued in Philadelphia County, where plaintiffs’ verdicts and higher awards are statistically more likely. It is also not possible to ascertain what percentage of the settlements were reached in counties where the statistical likelihood of a plaintiff’s verdict is extraordinarily low. In any event, all of this raw data is not usually compiled with such specificity. Since it is available, it should be utilized in every case to guide decisions concerning settlement strategy.