Law Review: Numbers are down, but Phila. is still a haven for medical malpractice suits

Posted: August 25, 2014

After all the hand-wringing and anguish over out-of- state firms flocking to file lawsuits in Philadelphia - the law firms you see advertising on late-night television - is Philadelphia still the notorious plaintiffs' paradise of common lore?

It all depends on your idea of civil litigation bliss.

A look at medical malpractice awards is revealing. There is no question: Philadelphia remains the most favorable jurisdiction in Pennsylvania for lawyers seeking big payoffs, a maddening fact to the many physicians and hospitals here.

And new data compiled by the Pennsylvania Supreme Court make that point incontrovertibly.

Although Philadelphia accounts for only 12 percent of the state's population, 40 percent of medical malpractice trials resulting in verdicts in 2013 took place in the city. Not only are a disproportionate number of cases tried here, but the odds are better for plaintiffs.

Philadelphia plaintiffs won 45 percent of cases tried to verdict in 2013, more than any other jurisdiction. In Bucks County, there were only four medical malpractice cases resulting in verdicts, and the plaintiffs won none. In Montgomery, the results were better for plaintiffs; 19 percent of cases went their way, but here again they trailed Philadelphia significantly.

In more than half the state's counties, there were no medical malpractice verdicts.

That the odds are better for plaintiffs in Philadelphia helps explain why the upper tier of Philadelphia's plaintiffs bar live like modern-day Medici - some are far wealthier than the corporate defense counsel at so-called white-shoe law firms they face off against in court.

Yet longer-term trends foretell a less-hospitable climate. Since 2002, when the state began requiring that malpractice cases be filed only in the jurisdiction where the injury occurred, cases have dropped by half statewide.

And after John Herron, administrative judge of the trial division of the Philadelphia Court of Common Pleas, initiated rule changes in 2012 designed to restrict filings in Philadelphia by out-of-state plaintiffs, lawsuits alleging harm from asbestos and prescription drugs dropped more than two-thirds. These are typically complex litigation that can result in huge awards.

The Pennsylvania legislature also sharply restricted the possibility for recovery in civil cases. The act requires that plaintiffs show a defendant is 60 percent or more responsible before the plaintiff can get any money. Previously, the threshold had been much lower.

More change appears to be on the way.

The state Supreme Court on Monday issued a potentially game-changing opinion expanding the circumstances under which a civil defendant in Philadelphia can ask a trial court to transfer a case to another, presumably less plaintiff-friendly, jurisdiction. Trial courts can consider factors that had been off-limits or restricted, such as the inconvenience of travel by parties and witnesses to a trial, in deciding whether to transfer a case.

Philadelphia "is still a challenging jurisdiction," Cary Silverman, a lawyer with the corporate defense firm of Shook, Hardy & Bacon L.L.P. But, he added, since the rule changes of 2012, "it has been viewed as much more even-handed and moving in the right direction."

The push to change the rules in civil filings began more than a decade ago, when lawsuits against hospitals and doctors were restricted to the county court jurisdictions where the injuries occurred. The plaintiffs were also required to provide certification the lawsuit had merit. The trend accelerated in 2012, when Herron, concerned by the growing backlog of out-of-state cases, instituted rules aimed at cutting back on filings.

No longer would juries decide before a trial what the damages might be if the corporate defendants were found responsible - a practice corporate-defense counsel said added pressure for a settlement. Herron also restricted the bundling of 10 or more cases for trial at a time, a practice that likely confused juries, and he limited appearances by out-of-state lawyers.

"My overall goal was to add structure where there had been none, and to send a bully-pulpit message to discourage out-of-state litigation," Herron said.

The results were dramatic. In 2012, the year the rules were adopted, the caseload of asbestos and pharmaceutical filings dropped from a high of 2,690 the year before to 816 in 2012, and was lower still, at 813, the following year.

The number spiked sharply for the first half of this year - to 1,074, attributable to a flood of lawsuits involving Risperdal, an anti-psychotic medication, and other litigation. But Herron said the bump is anomalous and that he expects the trend line to head back down.

Whether Herron is right about that will be borne out by filings and verdict data from the Supreme Court in the years to come.


cmondics@phillynews.com

215-854-5957

@cmondics

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