Twice this Court has struck down hard-fought provisions of tort reform legislation—in 1997 with Act 135, and during the 1980s with Act 111.

Confounding voters’ ability to select a candidate are state codes governing judicial conduct, which discourage judicial candidates from expressing their views on issues that may come before the courts.

In an attempt to fill in a knowledge vacuum for voters, a newly-formed organization called Pennsylvania Law Watch is disseminating a study that examines past case decisions by Republican candidate Judge J. Michael Eakin and Democratic candidate Judge Kate Ford Elliott, both of whom currently sit on the Pa. Superior Court, in eight categories, including medical malpractice, for which Eakin was rated 100 percent and Ford Elliott was rated 30 percent—the higher rating being more favorable to the health care industry. Ford Elliott dismisses the report’s validity, calling it a political position paper.

Meanwhile, physicians have launched a grassroots fundraising and support campaign for Eakin, the likes of which have not been seen in Pa. for any previous judicial election.

 Significance of the Election

The Pa. Supreme Court has been a serious obstacle to the enactment of medical liability reform by the Legislature. Even though Act 135—a sweeping medical tort reform bill—was championed by the Pennsylvania Medical Society, had the backing of the Pennsylvania Trial Lawyers Association (PaTLA), was passed in 1996 by the Pa. General Assembly and was signed by Gov. Ridge, several of its most significant provisions were unilaterally suspended by the Court as legislative encroachments on the state’s judicial powers.

Among the Act 135 provisions suspended were: punitive damage procedural provisions that would have required a plaintiff to prove both that a malpractice lawsuit is justified and that punitive damages are warranted; expert witness report requirements shortly after a lawsuit is filed that would have helped reduce the number of frivolous lawsuits; and speedy proceeding provisions mandating and setting a time frame for conciliation, discovery and pre-trial conferences between plaintiff and defense attorneys that would have helped expedite cases and expose frivolous lawsuits.

The Court’s intervention took the medical community by surprise, although it had happened before. In 1975, Pa. had enacted an extensive medical liability reform bill, Act 111, which also established mandatory medical liability insurance and CAT Fund surcharge requirements. The state and federal courts upheld those coverage requirements, but the Pa. Supreme Court struck down virtually all tort reforms as unconstitutional, including mandatory arbitration of claims, according to the PMS.

The PMS hopes to see tort reform provisions reinstated, either through legislation or by rules adopted by the Court itself.

"It’s really a simple equation: We’re looking at a court that has been predisposed to striking down tort reform provisions. We believe that needs to change so that any reforms that are passed in the Legislature have a fair hearing by the Court, should that hearing take place," says David Thompson, executive director of the Pennsylvania Medical Political Action Committee (PAMPAC).

As tort and medical malpractice issues have continued to escalate in Pa., Thompson says, PAMPAC has looked to the experience of other states, such as Michigan and Texas, and has learned of the importance of becoming involved in judicial elections.

According to the Philadelphia Inquirer, manufacturers and other interests in Michigan began organizing in 1996 to promote and finance campaigns of judicial candidates believed to be sympathetic to business interests, successfully winning a majority on the Michigan Supreme Court, which is now considered to be one of the most friendly to business in the nation.

In 1977, Texas physicians saw key provisions of sweeping medical malpractice reform passed in that state struck down by the Texas Supreme Court, and endured another decade of malpractice decisions by the Court that they felt were disproportionately skewed against them, spurring a grassroots campaign in the late 1980s to unseat what they viewed as plaintiff-friendly justices on the Court, notes Alan Baum, M.D., past president of the Texas Medical Association. Efforts by state and county medical associations, grassroots physician information campaigns and Texas Medical Association Political Action Committee involvement succeeded in producing a majority of strict constructionist-minded justices on the Court, says Baum. "Existing statutes stopped being overturned and the Court held by what the Legislature intended," he notes.

California’s experience is perhaps the most dramatic. Years after passing one of the nation’s most sweeping medical liability reform measures—which included caps on noneconomic damages—the California Supreme Court struck down the law as unconstitutional on a four-to-three vote. A year later, after one Justice was replaced, a rehearing was requested and the Court upheld by a four-to-three vote the constitutionality of all of the measure’s provisions.

 Choosing a Candidate

Both Eakin and Ford Elliott have received the Pa. Bar Association’s highest rating. However, they are constrained against discussing stances on specific issues, ruling out traditional means of sizing them up.

Nevertheless, the physician community appears to be solidly behind Judge Eakin for November’s election. Although PAMPAC does not take the position that he is pro-medicine, per sey, "We believe that Judge Eakin is a strict constructionist who does not espouse to legislate from the bench," says Thompson.

A grassroots group known as "Physicians for Eakin" is comprised of some 150 physicians from around the state who are organizing fund-raisers, typically hosted in physicians’ homes, at which Eakin is invited to speak, says Edward Dench, M.D., a State College anesthesiologist who chairs the group. "I’m not aware of any physician who is not supporting Eakin," he says.

According to Dench, physician support of Eakin is not based on party affiliation, and he notes that some members of his group are in fact "life-long Democrats." Dench says that Eakin is perceived by physicians as someone who is opposed to judicial activism when interpreting the law.

In his dozen or so meetings with physicians as of press time, Eakin has mentioned that he recognizes the severity of the state’s medical liability crisis. "There is a major problem, and something needs done about it," says Eakin. "I really think that something will be done if the Legislature sees a Court next year that is more friendly to the concept of putting the brakes on the system—malpractice as a general statement, and Court rules as a broader statement," Eakin says. "That’s not to say I’m a rubber stamp for anyone," he adds.

Eakin also tells physicians that he is aware that the medical liability problem is exacerbated by reimbursements that are dramatically lower than they are in surrounding states and that the problem is causing physicians to leave the state and to retire early, as well as creating a significant physician recruitment problem. "Anecdotally, I’ve heard horror stories, frankly, that make the point, and to hear them so pervasively and so uniformly from one corner of Pennsylvania to the next, its not an overstatement," says Eakin.

Eakin says he also tries to educate physicians about how, from a legal standpoint, so many malpractice trial venues are shifted to Philadelphia, where jury verdicts have been much higher than elsewhere in the state. He cites a Superior Court ruling, for which he was in dissent, that illustrates the problem. Plaintiff attorneys in a malpractice case in Reading Pa., in which Eakin says everything happened in Berks County, sued in Philadelphia because the umbrella corporation involved had an office there. The lower court judge transferred the case to Reading, but the Superior Court overruled the transfer, moving the case back to Philadelphia. Eakin’s dissent held that it was "oppressive and vexatious" to hold the case in Philadelphia, given the travel burden it would impose to attend a trial there.

Eakin opposes venue shifting to Philadelphia in three similar cases, two in Lehigh County and one in Lancaster County.

The Pa. Supreme Court controls where you can sue and the rules of the courtroom, and some provisions of Act 135 had tread upon that area, prompting the Court to suspend provisions it felt were not the Legislature’s prerogative, says Eakin. "At the same time," he adds, "I think there are a lot of things the Legislature can do, and the Court has to take a new look at some of the rules that are within its bailiwick, such as the venue issue." Although Eakin would not comment specifically on provisions of Act 135, he notes: "I think what I’ve written in the past indicates that I might not have been so quick to suspend the whole thing."

Judge Ford Elliott says she had not been invited to speak to any physician or health care groups. She notes that she has been a Justice on the Pa. Superior Court for 12 years and has prevailed in one retention election, and invites physicians to look at her past cases, which will she says will indicate a record of fairness. "I would suggest that they’re not aware of the body of work that I have on the bench. They’re not reviewing it as carefully as they perhaps should, and I’m disappointed about that," Ford Elliott says.

"Cases are decided on a case-by-case basis, based upon the facts, based upon the laws applied to those facts and based upon the standard of review of the court when we’re dealing with them. That’s the way I continue to decide cases," says Ford Elliott.

To illustrate the principle of fairness, she points to a case that dealt with a question of the need for specificity in pleadings, in which she held that a case has to be tried in the manner in which it was pled, rather than allowing attorneys to change theories in the middle of a trial.

On a case of first impression dealing with physicians’ rights during an arbitration panel process—Rudolph v. Pa. Blue Shield—Ford Elliott says she decided in favor of a physician who was precluded from suing Blue Shield in court after the insurer ordered him to repay claims that the insurer deemed not to be medically necessary. "I drafted a very strong dissent where I took the position that the arbitration panels that had been established were simply not fair. It was that dissent that was then adopted by the Pa. Supreme Court and became the leading opinion on that issue," says Ford Elliott.

Another case in which the Pa. Supreme Court affirmed her decision, Ford Elliott says, involved a physician who was prevented from appealing a negative peer review decision in which malice was allegedly involved. Ford Elliott’s decision held that the physician’s claims against a hospital were not precluded by confidentiality provisions of the Peer Review Protection Act, she says.

Another means of assessing the case histories of the two candidates has surfaced, but is not without controversy. A nonprofit organization—Pennsylvania Law Watch (PLW)—formed this year with the primary mission to educate the public that decisions made by Pa.’s three appellate courts (Supreme Court, Superior Court and Commonwealth Court) have a dramatic impact on their lives, according to its Executive Director John O’Connell. Representing a coalition of business, community and educational groups, PLW set out to review the public records of justices on those courts and to present that information to voters in an attempt to fill the vacuum of information about judicial candidates during election campaigns, he says, noting that his group is not endorsing either candidate.

Given the tremendous number of cases involved for each Justice, says O’Connell, PLW looked to a nonprofit, Washington D.C.-based organization—Judicial Evaluation Institute (JEI)—that had already produced summary reports rating Pa. Justices’ past case decisions on various subject categories. The PLW has devoted its activities thus far to disseminating the JEI’s analysis of the case decisions of Pa. Superior Court Justices—including Eakin and Ford Elliott—to the state’s chambers of commerce and civic groups, who O’Connell says are distributing the reports throughout their membership.

PAMPAC and the Physicians for Eakin coalition have also distributed the report’s findings to physicians throughout the state. On medical malpractice cases, the report assigns a 100 percent rating to Eakin and a 30 percent rating to Ford Elliott, with the higher rating being friendlier to the interests of health care institutions. Those ratings have become a mantra among physicians in their campaign for Eakin. On overall favorability to the economy, Eakin was rated 72 percent and Ford Elliott was rated 30 percent.

Ford Elliott views the report as part of misinformation campaign about her record as a judge. "To even comment on it as a ‘study’ is foolish. It has no credibility. It’s strictly a political position paper being disseminated by a Republican-based organization in Harrisburg," she contends.

"I’ve been on the bench 12 years and I’ve participated in over 7,000 decisions. Pennsylvania Law Watch looked at 89 cases to cast a record from those decisions. I’m disappointed that, out of all the decisions that I’ve handled, there have been several in areas that deal with physicians and health care organizations, and that only a few of them have been singled out. You’re not exactly looking at a full body of work," Ford Elliott maintains.

JEI Executive Director Neil Coglin declares that his group is not partisan, although it does have a point of view, and he defends the report’s methodology as valid. The ratings exclude cases that either do not reveal any distinction in judicial philosophy or are irrelevant to JEI’s issue focus.

"Almost all cases get reviewed, and we choose cases for analysis where either the appellate panel disagreed among each other or overturned the judge below," says Coglin, noting that cases involving unanimous decisions do not reveal distinctions in how judges interpret the law. The report’s preface states that, by analyzing only "cases where outcomes have not been dictated clearly or easily by current law," a judge’s tendency toward judicial activism can be observed.

The report also uses a specific policy focus to select cases for analysis, namely, one which decries legislating from the bench as damaging to business and institutions. "Our policy point of view is that the explosion of civil liability in the past 40 years has reached the point where it’s doing real damage to our institutional and economic life, and that a large amount of it has come from judge-made law," says Coglin.

The ratings do not always toe party lines, notes O’Connell. A Spring 2000 JEI report of Pa.’s Supreme Court Justices shows two judges sharing the highest overall rating of 70 percent. One of them is Justice Flaherty, a Democrat, whose mandatory retirement from the bench at age 70 is creating the vacancy to be filled by either Eakin or Ford Elliott. The report gave Flaherty a malpractice rating of 54 percent.

The report gave other Pa. Supreme Court Justices the following malpractice ratings: 67 percent for Castille (R), 58 percent for Zappala (D), 45 percent for Newman (R), 37 percent for Cappy (D), 9 percent for Nigro (D), and no rating for Saylor (R), who was not on the bench when the cases were analyzed.

JEI has commissioned such reports for roughly a dozen states so far, including Michigan, whose business and tort reform groups used it to successfully change the makeup of its Supreme Court in 1998, Coglin notes.

 Mobilizing the Campaign

This election marks the first time that PAMPAC has become involved in judicial elections to any great extent, and is attempting to rally grassroots physician support across the state in support of Eakin, says Thompson. PAMPAC has donated $5,000 to Eakin’s campaign, which Thompson concedes is not a sizable amount in a judicial election. He notes that PAMPAC’s board is "charting new territory" and chose to devote more of its resources to mobilizing physician support, which it believes to be a far more valuable tool to get Eakin elected.

The Hospital and Healthsystem Association of Pennsylvania’s PAC has contributed $1,000 to Eakin’s campaign, the first time that it has contributed to a judicial election, according to Jim Redmond, HAP’s senior vice president of legislative services. Since hospitals are not allowed to use corporate assets to make political contributions, HAPAC is encouraging hospital executives and medical staffs to attend Eakin fund-raisers and to make personal contributions to Eakin’s campaign. Redmond notes that the JEI report figured prominently in HAPAC’s activities to help elect Eakin.

Physicians for Eakin, which was formed this Spring when all board members of the PMS agreed to be on the coalition, has reached out to county medical societies to grow its ranks, says Dench, who is also vice president of the PMS. For a dues payment, coalition members’ names are listed on the group’s letterhead, and the group hopes to organize several more private physician fund-raisers, at which they will invite Eakin to speak, Dench notes.

The group plans to send a statewide mailing in October to every physician in the state to encourage them to post notices in their offices for their patients. Side one of a full-color leaflet from PAMPAC reads, "An important Message for my patients...there’s a crisis in Pennsylvania," and warns them about physician flight because of the medical malpractice crisis. Side two exhorts patients to vote for Mike Eakin, indicates that he has earned the support of thousands of Pa. doctors and includes a testimonial from an ob/gyn who declares that the harm to patient care being caused by the state’s legal system can be changed for the better by voting for Eakin.

Dench says that Physicians for Eakin also hopes to accumulate enough funds for television ads. As of the third week in September, Eakin notes that his campaign has raised several thousand dollars, and has set a floor goal of $1.5 million. He notes that his campaign staff has hired a national media consultant group to help formulate television ads, which he anticipates will air during the last weeks of the campaign. Eakin notes that the last Pa. Supreme Court election—in 1997, when Thomas Saylor (R) prevailed—entailed spending close to that amount by both sides.

PA Future Fund PAC, which O’Connell says is a coalition of business executives in southeastern Pa. that has looked at the JEI study, has contributed $100,000 to Eakin’s campaign, according to campaign finance documents as of June 4, the most recent available at press time. Those documents also indicate that some attorneys and law firms have contributed to the Eakin campaign, in amounts typically of $1,000, but as high as $5,000, while identified attorney contributions appear to be more numerous for Ford Elliott’s campaign. At least one prominent law firm has contributed $5,000 to both campaigns.

Eakin notes that members of the Philadelphia Trial Lawyers Association donated $250,000 to Saylor’s opponent, Joseph Del Sole (D), in the last weeks of the 1997 judicial election, and anticipates similarly heavy support for his opponent in this campaign.

The Philadelphia Trial Lawyers Association does not have a PAC and does not endorse judicial candidates, although some lawyers raised money through another PAC during the 1997 judicial campaign, says Gerald McHugh, a past president of the association. According to McHugh, members are contributing to both Eakin’s and Ford Elliott’s campaigns out of courtesy to attorneys on fundraising committees for both candidates. "I’ve had prominent trial lawyers solicit me for both candidates," says McHugh, noting that a past president of the Pennsylvania Trial Lawyers Association (PaTLA) is supporting Eakin.