Commentary: Malpractice Lawsuits Down in PA, but There’s Still a Long Way to Go

By Alan Lyndon

A few weeks ago, Pennsylvania Gov. Ed Rendell released data from the Administrative Office of Pennsylvania Courts (AOPC) that showed a 41 percent decline in 2008 statewide medical malpractice lawsuits since 2002.

“Pennsylvania is a success story when it comes to medical malpractice reforms,” Governor Rendell said.” Our actions have worked. Thanks to thoughtful legislative reforms passed in 2002, along with aggressive judicial and administrative reforms implemented since then, the number of malpractice cases being filed and the cost of malpractice insurance continue to drop.”

In April of last year, the AOPC released a statement declaring that the 2007 statewide malpractice suits declined 40.8 percent since 2002, which means that such lawsuits have dropped just 0.2 percent in the past year.  In fact, since 2002, the percentage rate has decreased every year from a four percent difference in 2003 to last year’s 0.2 percent difference.

So what happened in 2002?  That was the year just prior to two significant changes made by the Pennsylvania Supreme Court:  Requiring attorneys to obtain from a medical professional a certificate of merit that establishes that the medical procedures in a case fall outside acceptable standards; and requiring medical malpractice actions to be brought only in the county where the cause of action takes place — a move aimed at eliminating so-called “venue shopping.”

Those changes seemed to make a significant difference in malpractice filings.  But that difference seems to be leveling off.  And none of those statistics addresses the elephant in the room:  caps.  Thirty-one states have some form of limit on the amount of jury award in a malpractice case.  The most often cited as the biggest success is Texas, which, in 2003, imposed a $250,000 cap for non-economic damages.

Alan Miller, chairman and CEO of Universal Health Services, Inc., cited a 2008 survey by the Texas Medical Association showed that 90 percent of physicians in the state said they were more comfortable practicing medicine in Texas now than they were before the tort reform was enacted.  “The Texas survey showed that since reform went into effect,” said Miller, “the number of malpractice lawsuits has declined, physicians are able to purchase new equipment and expand the procedures they offer and are more willing to treat high-risk patients.”

A recent survey by the Massachusetts Medical Society and the University of Connecticut Health Center revealed that among physicians surveyed, 83 percent reported that they had practiced defensive medicine.

Defensive medicine may come in various forms, including the ordering of medically unnecessary laboratory or radiologic tests, prescriptions, specialist referrals, invasive procedures, and hospital admissions. Also included would be the avoidance of high-risk procedures or even the avoidance of high-risk patients.

Alan Woodward, M.D., vice chair of the Medical Society’s Committee on Professional Liability and a past president of the organization, said “Physicians practice defensive medicine because they don’t trust the medical liability system.”

The Massachusetts  study showed that an average of 28 percent of tests, procedures, referrals and consultations were ordered for defensive reasons. The study also concluded that 13 percent of all hospitalizations ordered by physicians were ordered for defensive purposes.  “This survey further demonstrates the negative impact of the current dysfunctional liability system on health care and the need for fundamental reform,” said Dr. Woodward.

It’s great that the number of malpractice lawsuits in Pennsylvania have declined since 2002.  But again, the effect of those changes has plateaued.  While the state has made efforts to ease the financial burden of practicing medicine, the most significant step of tort reform still eludes anxious Pennsylvania docs.

Alan Lyndon is a contributing writer for Physicians News.