HAP, Members Testify in Opposition to Venue Rule Change
June 26, 2019
HAP, members, and stakeholders testified this week in opposition to a proposed change to venue reform. The Legislative Budget and Finance Committee (LBFC) held a two-day hearing about the Pennsylvania Supreme Court’s Civil Procedural Rules Committee proposal to change the medical professional liability venue reform adopted during 2002.
HAP supported the 2002 venue reform rule that required that medical liability claims can only be filed in the county where the alleged medical error occurred. Prior to this reform, trial attorneys could “venue shop” to find the most favorable climate for receptive juries and high awards. This practice contributed significantly to the medical liability crisis.
The state legislature and the Supreme Court adopted the current venue reform, with buy-in from the executive branch. It was one of several reforms adopted to address the medical liability crisis, and was driven by the recommendations of an Interbranch Commission on Venue.
During late December 2018, the Supreme Court Civil Procedural Rules Committee proposed an abrupt reversal of the venue reform.
The LBFC hearing was directed by state Senator Lisa Baker’s (R-Luzerne) Senate Resolution 20, which called for a study of the proposed rule change before the committee made a final decision. It directs LBFC to perform a study on the impact of the proposal on access to care and medical liability rates, and included a directive to host a hearing on the issue as well.
During opening remarks on day one of the hearing, Senator Baker acknowledged that there is urgency, gravity, and some controversy attached to the LBFC study, and indicated that the proposal to rescind the 17-year venue reform rule has caused alarm among many lawmakers.
Senator Baker thanked the Court for its willingness to hold off on a final action until the study is complete, and reminded the LBFC that they need reliable information and statistics to make informed recommendations to the legislature and the Court about the proposed venue change.
She also emphasized that she carefully crafted her resolution to address only the issue of venue as proposed by the Court.
HAP Senior Vice President, Advocacy and External Affairs, Warren Kampf, testified against the proposed rule, saying that the venue proposal does not take into consideration changes to the health care system between 2003 and 2019, which could amplify the negative impact of the rule. These changes include:
- Worsening provider shortages
- Medical liability insurance costs and availability
- Fiscal insecurity of hospitals, especially in rural areas
- Mergers and consolidations
Kampf stressed that available data does not support the conclusion that the current venue rule should be rescinded, and that the reduction of court filings instead demonstrates that the reform has been working for nearly 17 years.
He also argued that the current venue policy was effectively built by three separate branches of government that recognized a crisis and addressed it, and that the “current proposal to reverse that policy is a unilateral move that sets a dangerous precedent––one that may undermine future opportunities for interbranch collaboration.”
The Pennsylvania Medical Society President Danae Powers, M.D. also testified in opposition to the proposed change, saying that patients who have suffered loss deserve to be heard in court; and likewise, physicians and providers deserve to defend themselves without bias of some jurisdictions.
Dr. Powers highlighted three threats under the proposed change:
- A return to venue shopping in metropolitan markets
- Impact on patients and their ability to access quality care
- Stability of liability premiums for physicians to practice in the state
She spoke to the impact of the medical liability crisis of the late 1990s and early 2000s when older Pennsylvanians, expectant mothers, newborns, and trauma patients suffered due to the loss of high-risk specialists. And she stressed that the venue reform adopted at that time, and still in place today, created much needed stability.
Other stakeholders testifying against the proposed venue change included the Defense Bar and the Insurance Federation of Pennsylvania––which highlighted the 2019 Milliman study about the issue––and three medical colleges:
- University of Pennsylvania
- Lake Erie College of Medicine
- Penn State College of Medicine
The medical college leaders, in expressing opposition to a change in the current venue rule, stressed that the proposed venue change will facilitate the practice of venue shopping that contributed to the medical liability crisis. In turn, Pennsylvania will not be able to retain the best and brightest physicians coming out of the state’s medical colleges, and access to care will suffer, especially in areas of the state that already are considered medically underserved.
Representatives of the Plaintiff Bar argued for a return to the practice of venue shopping.
Regina Hoffman, executive director for the Patient Safety Authority (PSA), which is neutral on the proposed venue change, provided facts about the data it collects on incidents and serious events. The PSA was established with significant HAP support and input, at the same time as the adoption of a number of medical liability reforms during 2002. It is an independent state agency charged with taking steps to reduce and eliminate medical errors by identifying problems and recommending solutions that promote patient safety.
HAP will continue to provide data to the LBFC as it studies the issue. Of particular importance are the significant strides made in the state since the 2000s to improve patient safety and quality of care. Pennsylvania was the first state to:
- Create a patient safety organization (the PSA)
- Require the reporting of all health care-associated infections and to release the first hospital-specific health care associated infection report
- Pennsylvania is one of ten states to require the reporting of ALL, and not just a select number, of infections
- Develop and implement a payment policy with the state’s Medical Assistance agency that reduces payments to hospitals when a Medical Assistance patient experiences a preventable serious adverse event
- Create a HAP-initiated Patient and Family Engagement Advisory Committee to provide guidance to hospitals
For additional information, contact Warren Kampf, HAP's senior vice president, advocacy and external affairs