ATRF Judicial Hellhole Annual Report: Medical Liability Discussed

The American Tort Reform Foundation (ATRF) issued its 2021/2022 Judicial Hellholes report in December last year. The annual release documents abuses of the civil justice system in jurisdictions the pro-tort reform group says are among the most unfair and out-of-balance in the nation. 

The ATRF is a branch of the American Tort Reform Association (ATRA), an umbrella organization dedicated to reforming the nation’s court system via a network of state-based liability-reform coalitions.l Medical professional liability issues significantly influence regions mentioned in the 2021/2022 Judicial Hellholes report every year.

New York’s Rise as a Top Judicial Hellhole: Nuclear Verdicts’ Impact

The state of New York was crowned America’s Number Two Judicial Hellhole in this year’s report, partly due to a surge of “nuclear verdicts” in cases ranging from premise liability to medical malpractice. The ATRF says these awards “usually include an amount for pain and suffering that dwarfs prior verdicts and, at levels in the tens of millions of dollars, hardly serves a compensatory purpose. Rather, they result from improper tactics that inflame jurors and mislead them to believe that amounts at these levels are ordinary and acceptable in litigation.”

The Judicial Hellholes report noted that WalletHub recently ranked New York as the third-worst state for doctors, tying Massachusetts, Pennsylvania, South Dakota, and Alaska with the highest medical malpractice award payout amounts per capita. According to the ATRF, Chief Administrative Judge of the Courts of New York State Lawrence Mark further stacked the deck against medical liability defendants when he recently instituted a rule limiting depositions to seven hours per witness. 

The new rule adversely impacts malpractice defendants because the complex nature of medical liability litigation typically necessitates multiple deposition sessions with essential witnesses to tease through years of medical care and treatment and information concerning chronic and preexisting conditions.

Philadelphia and Pennsylvania: A Hotbed for Medical Litigation

The Philadelphia Court of Common Pleas and the Supreme Court of Pennsylvania were named this year’s Number Four Judicial Hellhole. The ranking is mainly due to the judicial system’s announcement last year that it will consider easing a 2002 court rule that required plaintiffs to file medical liability lawsuits in the county where the treatment occurred. The 2002 rule intended to reduce forum shopping and create a more fair and balanced playing field. 

The proposed rule change would allow attorneys to also file medical malpractice suits in jurisdictions where the healthcare provider operates an office or where a physician lives, among other options. According to the ATRF, plaintiffs will flock to areas like Philadelphia, where juries are more willing to award higher verdicts in favor of plaintiffs.

St. Louis and Missouri: Continued Uncertainties in Punitive Damages

The city of St. Louis ranked as this year’s Number Seven Judicial Hellhole due to remaining uncertainties about the state’s standard for punitive damages in medical liability cases. The Missouri Legislature passed a law in 2020 intended to restrict punitive damages to cases in which the plaintiff showed “by clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.”

Despite the new law, the Missouri Supreme Court upheld a circuit court’s application of a lesser standard for awarding punitive damages in a March 2021 medical malpractice case. In Rhoden v. Missouri Delta Med. Ctr., the high court ruled that “acting willfully, wantonly, or maliciously is equivalent to acting with a complete indifference to or in conscious disregard for the rights or safety of others.” 

The court concluded that plaintiffs made a submissible case for punitive damages by alleging that a doctor knowingly and incorrectly informed a patient that his two treatment options were prostate surgery or self-inserting catheters for the rest of his life. Considering the patient’s high risk for surgery, the doctor did not explore non-invasive treatment options, which constituted a complete indifference to or conscious disregard for the patient’s safety.

Colorado on the Watch List: A Watch for Judicial Hellhole Concerns

The Judicial Hellhole report features a “Watch List” section to call attention to jurisdictions that bear watching because they may be moving closer to, or further away from, designation as a Judicial Hellhole. Colorado appeared on this year’s Watch List due to its appellate courts allowing what the ATRF considers scientifically dubious expert testimony and its legislature’s “propensity to enact liability-expanding legislation.”

To illustrate, the 2021/2022 report highlights a pair of Colorado birth-injury cases that significantly diminished Colorado judges’ role in evaluating expert evidence’s reliability. In both cases, plaintiffs’ lawyers tried to introduce questionable expert testimony asserting that healthcare providers’ use of medication to induce contractions and failure to conduct an earlier Cesarean section led to a child’s birth with brain damage.

Two trial courts excluded expert testimony proposed by the plaintiffs that would have attributed the baby’s condition to cranial compression ischemic encephalopathy, a theory that prolonged, frequent compression of a child’s head during contractions can decrease oxygen and blood flow to the child’s brain during delivery. These courts, consistent with the positions of the American College of Obstetrics & Gynecologists and the American Medical Association, found the theory insufficiently supported by science to be admissible in court. 

Nevertheless, the Colorado Court of Appeals reversed the trial courts in both cases. The appellate court found that despite the lack of published articles and testing supporting the theory, the state applies a “liberal admission standard” for expert testimony, which allows the case to proceed to trial. According to ATRF, this approach is contrary to the gatekeeping function of the courts, which gives judges the responsibility of screening out made-for-litigation science. In September, the Colorado Supreme Court refused to review one of the cases, leaving the door open to junk science in Colorado courtrooms.

Minnesota’s Shift: From Judicial Hellhole to the Watch List

After spending the last three years on the Judicial Hellholes list, Minnesota was moved to the Watch List this year. Despite the improvement, the ATRF reiterated that it explicitly points out that the state’s medical malpractice laws are among the most plaintiff-friendly in the country. The ATRF points out that the state’s four-year statute of limitations, lack of a noneconomic damage cap, and ability of malpractice plaintiffs to sue for a “loss of chance” are lopsided in favor of the plaintiff.

The 2021/2022 report also took issue with Minnesota’s continued reliance on the Frye standard for evaluating expert testimony. The state is one of only seven still using the standard, which the ATRF considers weaker than the Daubert standard employed in 40 other states and the District of Columbia. And a ruling by the Minnesota Supreme Court in 2020 opened the door to third-party litigation financing.

Maryland’s Medical Liability Landscape: Uncertainty Continues

Although the court of special appeals reversed the $229 million medical malpractice verdict against Johns Hopkins Bayview Medical Center that initially landed the state on the Watch List last year, Maryland retains the distinction because the ATRF still considers its medical liability climate unstable. According to the report, “the fact that a Baltimore County jury rendered such an extreme verdict creates uncertainty about the risks of insuring the state’s urban doctors.”

Points of Light: What States Should Do With Judicial Hellholes

The Judicial Hellholes report features a Points of Light section highlighting noteworthy actions by judges and lawmakers to stem abuses of the civil justice system. The Missouri Supreme Court earned this praise for its July 2021 decision upholding the state’s noneconomic damage cap in medical liability cases. 

The Texas Supreme Court received a Points of Light mention for its decision preventing phantom damages. The North Carolina Supreme Court received Points of Light inclusion for declining to recognize a “loss of chance” claim because it would “require a departure from our common law on proximate causation and damages.”

The ATRF also gave Points of Light recognition to the 20 states enacting laws in 2021 to protect healthcare providers, businesses, schools, manufacturers of personal protective equipment, and others from claims during the COVID-19 pandemic. According to the ATRF, these laws balance public safety while reducing the threat of lawsuits against individuals and organizations providing vital medical care, products, and services during the pandemic.

How COVID-19 Legislation is Changing the Landscape of Tort Reform

More than two-thirds of all states have now enacted COVID-19-related tort legislation that raises the standard for medical liability cases above ordinary negligence. State legislation varies in how it defines eligibility for liability protection (healthcare professionals, facilities, or both), the scope of conduct covered (directly treating COVID-19 patients or other care impacted by a lack of resources due to the pandemic), exceptions for coverage (such as whether nursing homes are included) and the conduct that remains subject to liability (such as gross negligence).

The 2023-2024 Judicial Hellhole Report: Recent Updates

The recent Judicial Hellhole Report highlights some of the most problematic jurisdictions in the country for civil justice. First is Georgia, which has high nuclear verdicts and an unwillingness from the judiciary and legislature to address the state’s issues. 

Pennsylvania follows closely behind, with its Supreme Court decision increasing litigation tourism and a significant medical liability surge in Philadelphia courts. Illinois also struggles, especially in Cook County, where lawsuits related to biometric privacy and food and beverage industries dominate, alongside a growing number of no-injury claims.

States Struggling with Excessive Litigation and Unfair Legal Practices

Other states, like California and New York, face similar challenges with excessive litigation, such as Prop 65 lawsuits, no-injury class actions, and environmental litigation, which weigh heavily on businesses.

In South Carolina, the asbestos litigation system has earned a reputation for bias and unfair trials, while Lansing, Michigan, appears as a newcomer with growing liability-expanding legislation. Meanwhile, St. Louis and Louisiana continue to be known for their plaintiff-friendly environments and ineffective reforms, contributing to their places on the report.

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*This article has been updated with new information