In his speech last night, President Trump made the following statement:
“[W]e should implement legal reforms that protect patients and doctors from unnecessary costs that drive up the price of insurance and work to bring down the artificially high price of drugs and bring them down immediately.”
Given the position of Republicans on the issue, it is safe to assume that the “legal reforms” to which he refers are some type of tort reform that would limit the ability of victims to recover for negligence of physicians. Many people, perhaps even the President, are not aware that medical malpractice tort reform has been in effect in Pennsylvania for about fifteen years, and has already drastically lowered the number of lawsuits and verdicts. For example, the number of Pennsylvania medical malpractice jury verdicts hit a fifteen year low in 2015. The number of medical malpractice lawsuits now is about half of what it was in the late 1990s and early 2000s.
Despite the drastic impact of these reforms and those in other states, there has not been a corresponding decline in healthcare costs or insurance premiums. It would therefore be surprising if any federal tort reform acted to reduce “unnecessary costs that drive up the price of insurance.”
A man named Ken Walton recently wrote a facebook post that gained a great deal of attention. He alleges that, due to the fact that the rental car he was driving had its license plate stolen, he and his young daughter were pulled over. An officer pointed his gun at Mr. Walton, ordered him out of the car, threatened to shoot him, handcuffed him, and placed him in the police vehicle. Mr. Walton was eventually let go after it was learned he had done nothing wrong.
In his post, Mr. Walton writes, “Will I sue? I doubt it. I don’t want money from this (I can afford to send my daughter to counseling) and anything a settlement would generate would be trivial to me, and not worth the time it steals from my life.”
Mr Walton’s post got a great deal of attention. As of today, there are over three thousand comments to Mr. Walton’s post. For the purposes of this post, there are a couple of things to note from those comments. First, there are a great number of people encouraging him to file a lawsuit. In both the comments to the post and the post itself, there seems to be a presumption that a lawsuit would be successful. Second, many of the people encouraging him to file a lawsuit instruct him to find a lawyer to do it pro bono or to use GoFundMe to fund the lawsuit.
This post brings to my mind a few things that I’ve been thinking about recently regarding how lawsuits are evaluated and decided.
There were 101 medical malpractice jury verdicts in Pennsylvania in 2015. Seventy-nine of these verdicts were defense verdicts. The number of medical malpractice verdicts is a fifteen year low. Between 2000 and 2002, there was an average of 326 medical malpractice jury verdicts per year.
Further, the total number of medical malpractice filings in 2015 was 1,519, which is down from an average of 2,733 between 2000 and 2002. The reduction in verdicts and total filings was caused by the 2002 MCare Act, which made it more difficult to file medical malpractice actions in Pennsylvania.
In discussions about tort reform, it is important to know these numbers, which show that tort reform is already in effect and drastically reducing the number of medical malpractice lawsuits in Pennsylvania.The reduction in lawsuits, however, has not corresponded with a reduction in medical costs or insurance premiums.
The news keeps getting worse for Golden Living, which operates thirty-six skilled nursing facilities in Pennsylvania. Golden Living is defendant in an action filed by the Pennsylvania Attorney General’s Office. Complaints in that matter were filed in July and September 2015. The amended complaint can be found here.
That action alleges, among other things, that continent residents were left in diapers because they could not be helped to go to the bathroom. Residents were left in dirty diapers, were not properly repositioned, were not properly cleaned or dressed, did not receive proper exercises, and were not provided all meals. The facilities are alleged to be understaffed, with increases in the number of staff during state inspections. It is also alleged that records are falsified under direction or fear of management.
It is now being reported that, at an October 22, 2015 inspection of a Golden Living facility in East Pennsboro Township, Pennsylvania, maggots were found in a patient’s feeding tube.
For those of us who practice in the area of nursing home abuse, this conduct is not surprising. For individuals who support tort reform, it is important to keep these situations in mind. As we limit the ability of victims to bring lawsuits against facilities like Golden Living, we increase the likelihood that this conduct will continue.
Many people do not know the extent to which tort reform has progressed at the state level. This page has some good information on the impact of Pennsylvania’s 2002 MCARE Act. The MCARE Act placed additional demands on medical malpractice plaintiffs. Most importantly, it required that they bring the lawsuit in the county where the malpractice occurred and it required a “certificate of merit” by a qualified physician prior to filing. The number of medical malpractice cases filed statewide from 2000 through 2014 and the percentage of defense verdicts in cases that went to trial are below: Continue reading