HARRISBURG — A Pennsylvania lawmaker looks to end “venue shopping” in medical malpractice cases through a proposed constitutional amendment, looking to strike down a tactic criticized for causing lawsuits and awards to spike.
Supporters, however, argue that courts, and not lawmakers, should determine rules of civil procedure, maintaining it’s an important tenet in preserving checks and balances while also preventing limits to what injured patients might expect to win were they limited to counties where malpractice suits may be viewed harshly.
Senate Bill 125 proposes a constitutional amendment that, if passed through the General Assembly, would ask voters to decide whether to allow state legislators to adopt law deciding on rules establishing venues in civil cases.
“Because the court has already held that a law on this topic would be unconstitutional, the only way the Legislature can intervene on this topic is by passing a constitutional amendment,” Sen. Cris Dush, R-Cameron/Centre/Clinton/Elk/Jefferson/McKean/Potter, said Monday during a hearing on the bill by the State Government Committee, which he chairs.
Resolutions proposing amendments must pass through both the House and Senate in consecutive two-year legislative sessions. After that, voters are given final say as they’re offered a ballot question to consider at an election.
Dush introduced the bill on Sept. 30.
Sen. Steven Santarsiero, D-Bucks, the committee’s minority chair, argued that the proposed change would be the latest act attempting to undercut the judiciary’s role in balancing power between the three branches of government including the executive and the legislative. He said “constitutional norms” are under attack, namely at the federal level where, without directly naming the Trump administration, said “court decisions that are ignored because they don’t like them.”
“If you’re here to testify today in support of this proposed amendment and you think you’re here to testify about medical malpractice, you are mistaken. You’re here to support yet another attack on the foundations of our democracy,” Santarsiero said.
Dush pushed back, asserting that the “constitutional norm” dating to 1874 when the state constitution was ratified didn’t authorize the Supreme Court to set rules of procedure. Santarsiero countered that a ratification in 1968 included the “wise decision” to do exactly that.
The Pennsylvania Supreme Court lifted a rule that, beginning in 2023, allowed the return of the practice where attorneys could file medical malpractice claims outside of the counties where injuries occurred, potentially winning court judgments with higher monetary awards.
Case filings nearly doubled in Philadelphia County, rising to 541 filings in 2023, the latest year for which data is available, compared to 275 in 2022. Though some other counties saw a significant drop in filings, none experienced such a rise by volume.
There were 19 jury verdicts rendered in 2023 in Philadelphia with four fetching awards between $1 million and $5 million and four others topping $10 million. Comparatively, there were 13 such verdicts in the year prior with four awards reaching such totals. In both years, there were nine verdicts each favoring defendants.
Lawmakers moved in 2002 to adopt a bill as part of a broader tort reform package that eliminated “venue shopping.” From January 2000 through July 2003, Philadelphia juries alone awarded 166 monetary awards in malpractice cases with 83 ending with awards of $1 million or more.
The law was challenged in court and ruled unconstitutional by the Commonwealth Court, however, the state Supreme Court itself adopted its own rule accomplishing what the overturned law sought.
The issues simmered within the legal community thereafter until, upon request, the Supreme Court’s Civil Procedural Rules Committee reconsidered in 2022. A majority of the committee found that the rule caused “disparate treatment” for malpractice victims and that savings for defendants led to “less-than-full” compensation for victims. The members found that medical malpractice should be afforded venue changes the same as other professional liability and tort claims. State Supreme Court justices sided with the committee and lifted the rule.
Medical professionals, hospital administrators and industry advocates testified in support of the proposed constitutional amendment, claiming “venue shopping” risked further harming an industry already beset by rising costs, stagnant insurance reimbursement and a lack of providers.
“Every additional dollar directed toward liability costs is a dollar taken away from patient care. These increased costs invariably threaten our ability to sustain the critical but low-margin services such as trauma, obstetrics and behavioral health, particularly in those rural communities where access is already fragile,” said Alfred Casale, chief medical officer for Geisinger Surgical.
“The liability climate in PA has almost paralyzed us since the 2022 ruling that allows venue shopping,” said Dr. Charles Barbera, president and CEO of Reading Hospital. “This cripples an already fragile health care infrastructure.”
Eric Weitz of the Weitz Firm in Philadelphia and Kelly Ciravolo of Anzalone Doyle Trial Lawyers in Wilkes Barre were the lone attorneys to testify in opposition to the proposed amendment, something Santarsiero said was a failing of the committee for not having more balanced representation.
Weitz said the bill would “unsettle 150 years of our constitutional tradition of an independent judiciary.” While the 1874 state constitution didn’t address “venue shopping,” he said it did stress the “importance of an independent judiciary in preserving a just system.”
Weitz hoisted blame for the medical industry’s woes in Pennsylvania and beyond, in part, on the role of private equity ownership and the pursuit of profit. And, he bemoaned little talk during the hearing about medical malpractice victims and their rights to pursue legal remedies.
Ciravolo said if lawmakers want to help hospitals and other providers, they should continue work to improve staffing levels, boost insurance reimbursement rates and provide better facility surveys to ensure patient safety and quality of care.
“What we’re really talking about in this committee hearing is a legislative encroachment on judicial independence,” Ciravolo said.