Advocates for skilled nursing and long-term care providers are criticizing a recent Pennsylvania Supreme Court ruling that frees malpractice suits to be tried in plaintiff-friendly jurisdictions.
The state’s highest court sparked outrage when it overturned its 2003 decision to keep lawsuits within the county of alleged injury.
“Prior to the (2003) ban on venue shopping, healthcare providers in Pennsylvania were fleeing the state because they couldn’t afford to operate in such a punitive legal environment with high insurance premiums,” Zach Shamberg, CEO of the Pennsylvania Healthcare Association, told McKnight’s Long Term Care. “Last week’s decision will return us to those days for healthcare and long term care.
“The fight is just beginning and we’ve already begun having conversations with members of the Legislature, elected leaders, to see what can be done to overturn what would be a disastrous decision by the state supreme court.”
The news dulled the excitement of this summer’s increase in state Medicaid funding in the 2022-2023 budget, Garry Pezzano, president and CEO of LeadingAge Pennsylvania, said in a statement to McKnight’s Long Term Care.
“This will only further perpetuate financial instability of aging services providers,” said Pezzano. “We cannot move backwards and allow medical liability premiums to skyrocket and jeopardize access to long-term care and other healthcare-related services.”
Kila Baldwin, the president of the trial lawyers’ Pennsylvania Association for Justice, told the AP in a statement that the new rule returned fairness by “treating all parties equally under the law.”
“Cases should be heard before 12 jurors that do not have a connection to a hospital or surgical center that is oftentimes the largest employer in the county,” Baldwin said. “The new rule levels the playing field.”
Pezzano said a constitutional amendment, currently proposed in a house bill, is one remedy for long-term care providers. Shamberg said a legislative solution has more chance than the court reversing its decision, but the headwinds are stiff because there aren’t many legislative days left before the ruling takes effect on Jan. 1, 2023.
Shamberg also decried the give-and-take of more Medicaid money on the same day as renewed venue shopping: It may also affect hiring of staff needed for demand. Pennsylvania lost nearly 1,000 skilled beds over the last four years, according to CMS, and a LeadingAge PA member survey showed the number of nursing beds pulled offline grew fourfold from 2019 to 2021. In addition, 14 nursing homes have closed in the past two years.
Some 57% of nursing homes in Pennsylvania are projected to have an operating loss of at least 7.5% this year, according to a report last month by CliftonLarsonAllen, a national accounting firm.
“We looked back in 2019 and found Pennsylvania long-term care providers were spending more than $100 million every year just to defend frivolous lawsuits,” Shamberg said. “To return to an environment where venue shopping’s allowed will definitely impact the funds providers have to put toward resident care.
“We have one of the oldest populations in the country but we’ve been forced to turn away vulnerable seniors simply because we don’t have enough staff. This decision will exacerbate and amplify the access to care issue and create even more of a roadblock to our seniors and adults with disabilities receiving the care they need.”
