PCCJR Update — July 17, 2019

Venue Shopping ** Climate Change Litigation ** In the News

Hearing Reveals Substantial Premium Increases with Return of Venue Shopping

The Legislative Budget and Finance Committee (LBFC), chaired by Senator Robert Mensch, held hearings on June 25 and June 26 in Harrisburg to explore the impact of the proposed medical malpractice venue rule change. Over the two days, the committee heard some clear and compelling evidence on the financial impact the proposal would have on the state.

PCCJR was there and reported live on Twitter @paciviljustice. Be sure to check out our feed and that of our partners at the Hospital Association of Pennsylvania @HAPupdates and the PA Medical Society @PAMEDSociety

The Milliman Research Report predicts huge premium increases around Philadelphia if the venue rule passes. While premiums would increase across the state, the counties surrounding Philadelphia would see increases up to 45%! Certain medical specialties would see an additional 17% premium increase!

Here is some more of what the committee heard:

  • Pennsylvania currently has the third highest malpractice premiums in the nation according to Senior VP for Advocacy for the Hospital and Healthsystem Association of Pennsylvania, Warren Kampf.
  • The Patient Safety Authority dispelled the plaintiff lawyer promoted myth that medical error is increasing in Pennsylvania. Rather, there is a decrease in high harm events for patients. 
  • Peter Hoffman, Esquire testified that one-third of MCARE paid out each year goes to Philadelphia cases. Overall Pennsylvania still has a bad reputation for medical liability among young doctors.
  • Kevin Black, interim Dean of Penn State College of Medicine, noted that during the last medical malpractice crisis, 42% of specialists reduced or eliminated high-risk aspects of their practice.
  • The trial bar complained that medical liability lawsuits are down by 50 percent and cited national statistics on medical errors that do not necessarily reflect the experience in Pennsylvania.
  • University of Pennsylvania reported a 10-fold increase in pre-litigation settlement. This is a promising development!

Perhaps defense attorney Katherine Kravitz, Esq. summed it up best when she urged the panel not to punish health care for bringing expert care to rural Pennsylvania by subjecting them to Philadelphia court venues!

The LBFC will continue to collect and compile data from which they will issue a report due on January 1, 2020.

A new development is the introduction of SR 188 by Senator Jay Costa, the Senate Democratic Leader. This resolution seeks to greatly expand the scope of the LBFC’s study to include all the reforms included in the passage of Act 13 of 2002 (Mcare Act). The resolution does not provide an extension of time to complete this greatly expanded report, making it extremely difficult for the LBFC to issue a timely report should this resolution be adopted.

PCCJR has set up a special landing page to educate Pennsylvanians about the negative impact this rule change will have on access to health care. Be sure to check it out and share!

New Report Traces Climate Change Litigation

The Manufacturers’ Accountability Project (MAP) launched a new report that traces the origins of climate liability litigation against energy manufacturers and looks into the many groups, lawyers, and activists involved in the litigation. The report, Beyond the Courtroom: A Closer Look at Climate Litigation in the United States,” examines how climate liability litigation has become more frequent despite failing to produce a successful settlement or court decision to date.

In the first chapter, MAP introduces the key players in the climate liability litigation campaign—the municipalities, organizations, and attorneys suing energy manufacturers. It also peeks behind the curtain to the non-profits and donors that are providing financial contributions, as well as legal and communications support, to the litigation. Future chapters, to be released throughout the summer and into the fall, will go further into this network and look at the strategies behind the lawsuits.

Many of the lawsuits in Chapter One rely on the tort of public nuisance—a theory that pins liability on someone for unreasonably interfering with a public right. Here, the cases allege that the harm is the impact of climate change and the unreasonable activity causing the nuisance is the production, promotion, and sale of energy products. The remedy the lawsuits seek is to make energy manufacturers pay for alleged climate change injuries, such as future flooding and erosion.

Courts have consistently rejected this litigation. The United States Supreme Court essentially ended the first wave of climate liability lawsuits against the energy industry in the 2011 case American Electric Power (AEP) v. Connecticut. Two federal district courts have already dismissed cases this time around. As one federal judge observed, “would it really be fair to now ignore our own responsibility in the use of fossil fuels and place the blame for global warming on those who supplied what we demanded?”

Ultimately, Chapter One raises the question: If, as many involved in these lawsuits claim, they are hoping to make demonstrable changes that will protect their communities, why have they selected strategies and tactics that are time-consuming and don’t do anything to lower emissions? The answer, as future chapters will explain, lies in the intermingling of politics and money at stake in these cases.

What’s made clear, even from the beginning of “Beyond the Courtroom,” is that these lawsuits should alarm all manufacturers in the United States, not just energy manufacturers. They demonstrate how special interests and activists can distort the legal system and use it against companies that power our economy and provide a livelihood for millions in America even when they have no legal merit.

The full report can be read here.

In the News:

Venue Change| Insurance, medical college officials tell Pa. Senate committee that current med-mal venue rules should stay intact | Penn Record

More Venue Change| Lawmakers Eye Proposal to Broaden Med Mal Venue in Pa. as Lawyers and Industry Officials Present Pros and Cons | Legal Intelligencer (Subscription may apply)

Product Liability Cases| Impact of Judge Robreno’s Decision For Other Jurisdiction-Based Cases  | Penn Record

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