It’s been said many times: Women’s access to healthcare is on the ballot this November. Vice President and candidate Kamala Harris issued a reminder of that during last month’s presidential debate:

What is happening in our country, working people, working women who are working one or two jobs, who can barely afford childcare as it is, have to travel to another state to get on a plane sitting next to strangers, to go and get the health care she needs.

It’s true, but the narrative is not limited to abortion. Over the past several decades, the landscape of delivery rooms, OB-GYNs, and other forms of maternity care has been shrinking across the country. Amidst a wave of corporate mergers and acquisitions, more than 200 hospitals have shut their maternity wards since 2011. For pregnant women, geography is increasingly a barrier to the quality and availability of healthcare.

Those trends have impacted mothers in our region. For example, the latest casualty — the loss of the maternity ward at Delaware County Memorial in Drexel Hill, which delivered its last baby in 2022 — has created a delivery-room desert for many Delco mothers.

“The geography is so much different than it was [due to] the number of birthing resources that have closed in Southeastern Pennsylvania,” says Joanne Craig, co-chair of the Pennsylvania Maternal Mortality Review Committee and chief impact officer for the Foundation of Delaware County. “You used to go into a community hospital that’s a mile or blocks away, and now you’re maybe going from the Upper Darby area into Montgomery County.”

That distance, in more ways than one, contributes to the stubbornly high maternal mortality rate of the region, says Craig. “And so what happens? Women don’t go and get routine, regular advice, prenatal care. They don’t access the tests and screenings that are recommended.”

Over the past quarter-century, the steady loss of providers has been most acute within city limits. Between 1997 and 2019, 14 of 19 Philadelphia County facilities that delivered babies closed. And, for some mothers in the city, there’s the potential for more disruptions and longer distances ahead: In January, Temple Health expects to relocate its maternity ward to Juniata Park.

If you’ve listened to local hospital executives over the decades, you’ve consistently heard about one thing that could help remedy the situation: Curb the costs of malpractice insurance. These execs blame facilities closures on exorbitant premiums — especially for OB-GYNs, whose liability coverage is often three or four times costlier than that of other specialties.

But here’s the thing. We actually did that already in Pennsylvania. And it worked. In the early aughts, under Governor Ed Rendell, the state legislature enacted reforms that halted a “medical malpractice crisis” in its tracks, pulling the levers to stabilize the runaway premiums of that day.

“What I can tell you is that when OB-GYNs leave the state of Pennsylvania because of fear of malpractice, it means there are fewer clinical resources for mothers to access.” —  Joanne Craig, co-chair of the Pennsylvania Maternal Mortality Review Committee

Except now, with one of those key reforms recently removed, some observers fear a return of sky-high premiums and eventually more closures.

“We don’t want to set the stage for this to happen again,” says Curt Schroder, a former Republican state representative and the current executive director of the Pennsylvania Coalition for Civil Justice Reform.

What is “venue shopping?”

Though the disappearance of maternity wards has been a long-term trend nationwide, but here in Philadelphia, most of the damage was done during a brief period. Between 1997 and 2005, the city saw a 40 percent reduction in the number of obstetrics beds. At that same time, Pennsylvania had moved from being a middling state when it came to the average cost of malpractice insurance to being one of the nation’s priciest.

And there was a clear culprit for those price hikes, according to a Pew analysis from 2003: “largest cost component is state-specific — investigating, defending, and paying legal claims.”

Juries in the state — and specifically in Philadelphia — were awarding sky-high payouts to patients at a moment of heightened malpractice litigation. At the time, plaintiffs’ lawyers were allowed to file their claim in any county within the state — not necessarily where the alleged harm took place. As a result, an overwhelming amount of lawsuits landed in the plaintiff-friendly venue of the Philadelphia court system. The practice became known as “venue shopping.”

Then as now, Philadelphia verdicts tend to result in higher payouts. Between 2000 and 2003, more than 40 percent of all malpractice cases in the state were filed in Philadelphia (which is home to about 12 percent of the population). Out of those 400-plus verdicts, nearly 25 percent of them ended in “nuclear verdicts” or payouts north of $1 million. When a Pew report looked at the med-mal crisis in Pennsylvania, the think tank found that total payouts adjusted for population were twice the national average.

As a result, malpractice premiums doubled in Pennsylvania between 1999 and 2004. While it’s difficult to find exact data about insurance rates, past or current, reporting from that time suggests that Philly obstetricians were regularly paying upwards of $200,000 annually.

These costs contributed to the mass closure of trauma centers and maternity wards, and elected officials took action. The Republican-controlled statehouse and Democratic governor worked together on a series of bipartisan reforms, which included a ban on venue shopping. Beginning in 2003, plaintiffs had to bring claims in the county where the patient interaction happened.

By the end of the decade, malpractice lawsuits and nuclear damages plummeted. Insurance premiums dropped, then stabilized. And you stopped reading about stories like South Philly’s Methodist Hospital, which, after seeing its premiums double for obstetricians, closed its maternity ward in 2002. Or the story of Mercy Health, which stopped delivering babies that same year due to “malpractice premiums,” according to a 2002 New York Times article published prior to the statewide reforms.

Although those changes weren’t a silver bullet — more closures in the region followed, albeit less frequently than at the start of the century — they gave high-risk specialists a fighting chance. In fact, the six remaining maternity wards (until Hahneman’s closure in 2019, which made it five) in Philadelphia were eventually able to absorb the volume lost by the others, through an expansion of their own services, according to later studies.

While mothers complained about longer waits and distances, some experts argued that consolidation had been worth it and improved the quality of care. All of the remaining maternity wards have neonatal intensive care units (NICUs), for example, which was not the case in the early-2000s.

Regardless, the overall picture of maternal health in the region remains troubling — and it’s been declining for women of color. Craig compares the present to 2019, when the Maternal Mortality Review Committee launched, saying, “We’re roughly in the same place and in some ways, it’s gotten worse.”

If the venue-shopping moratorium, along with the related reforms, helped avert a disaster in the state’s healthcare system, which was particularly rough on OB-GYNs, then what accounts for the Pennsylvania Supreme Court’s recent about-face?

It’s politics, not pragmatism, according to Schroder. “Back in the early 2000s, you had a governor, Rendell, who was not an ideologue on this issue,” he says. “You also had a court that was closer in composition to, let’s say, neutrality.”

PA Supreme Court dials back

Although a Democratic governor and a Republican-controlled legislature initiated the venue-shopping reforms, the state’s highest court has the ultimate authority on adjusting venue rules. In implementing the changes back in 2003, the judges went along with the legislature but also ordered periodic reviews by the court’s civil rules procedural committee — an advisory body consisting of outside lawyers and lower-court judges who issue non-binding recommendations.

In August 2022, just prior to the 20th anniversary of the new venue-shopping rules, the committee issued its latest report, which found a majority of the 13-member body believed the pendulum had swung too far in the direction of healthcare providers: “The impact of the restrictive venue rules was such that the savings accruing to defendants represents less-than-full compensation to plaintiffs for their injuries,” the report read, and the PA Supreme Court overturned the Rendell-era reforms.

The state’s trial lawyers were a driving force behind the reversal. The Pennsylvania Association for Justice, which is the trade organization for trial lawyers, has insisted for years that litigation can’t be solely blamed for rising premiums. Instead, they’ve pointed to the investment losses of insurance companies. In the late 1990s, amidst the surge in insurance rates, four major carriers in Pennsylvania folded — and the scarcity of options likely played a role in the surging prices as well. (Pew, however, found that lawsuits were by far the biggest culprit.) This camp doesn’t blame venue-shopping, but rather, contends that regulating the insurance industry would be the more just avenue for reform.

“Plaintiff’s lawyers very well could kill the goose that laid their golden egg.” — Curt Schroder, executive director of the Pennsylvania Coalition for Civil Justice Reform

For many critics of the Supreme Court’s recent decision, the reversal was disappointing but not altogether surprising. The political influence of Philadelphia’s trial lawyers is legendary and the group’s PAC spent millions of dollars to elect the Democratic justices who control the majority of the highest court — none of whom held their current seats during the early-2000s crisis.

Regardless of what or who is behind the change, the impact has been significant on providers. “Over the past few years, the number of nuclear verdicts has skyrocketed in the Philadelphia court system,” says Schroder, who adds, “they’re much worse now than they were back then.” Since 2023, when the new rules took effect, more than 43 percent of all med-mal complaints brought in Philadelphia related to incidents that took place outside of the city. At least 30 cases have ended in $10-million-plus awards. According to a story in The Inquirer, the University of Pennsylvania has been forced to add $90 million to its liability reserves as a result of this recent surge.

Outside of the numbers, the bigger consequence may be the threat that more lawsuits pose to the collective psyche of providers in the region. Or, it may dissuade them from practicing here in the first place. “What I can tell you is that when OB-GYNs leave the state of Pennsylvania because of fear of malpractice, it means there are fewer clinical resources for mothers to access,” Craig told me a few years ago.

While the Pennsylvania Supreme Court has agreed to review the changes at the two-year mark, which would be January 2025, Schroder and the Coalition for Civil Justice Reform refuse to wait. They’ve introduced a bill in the House that would enact a constitutional amendment to give the legislature — and not the justices of the highest court — the authority over venue issues.

Though an amendment to the state constitution would take considerable time to gain support, and is perhaps unlikely, Schroder isn’t ruling out other avenues. In recent years, several states around the country have managed to pass comprehensive legislation that’s reformed medical malpractice in other ways.

How malpractice reform works elsewhere

For decades, California — which does not allow venue shopping — has been a national leader in malpractice reforms, and its latest entry is no exception. In the 1970s, a chaotic era for medical insurance rates — over two years, premiums quintupled — the California legislature convened a special session. The state ended up enacting a hard cap on the monetary awards and a cap on legal fees that could stem from a malpractice claim. Except in wrongful death cases, California plaintiffs could only pocket a maximum of $250,000.

Those laws, while successful in their aim of lowering premiums, weren’t without controversy. Patients and families who suffered from horrific injuries, like blindness or brain damage, felt the compensation was unjust — especially as time went on, with the cap remaining the same despite inflation.

In 2022, California’s legislature unanimously passed a bipartisan bill to revamp those laws, increasing the compensation cap to $350,000 and agreeing to raise it up to $750,000 over the next 10 years. After years of political squabbling over whether to abolish the cap or not, Governor Gavin Newsom praised the middle-ground approach as “a consensus that protects patients and the stability of our health care system.”

Unlike California, the Keystone State has no limits on malpractice awards. Though a hard cap remains a political non-starter in Harrisburg, Schroder believes a common-sense first step would be to outlaw venue shopping — which is allowed in only a small handful of states to begin with.

If the rules aren’t altered again, Schroder fears that history will repeat itself with respect to the cost of insurance. So far, premiums have yet to spike since the new rules took effect. But that could be coming. Lawsuits can take years to wind their way through the court system, delaying the response from insurers. Once those changes are reflected in the numbers, the average prices will once again “double or triple” says Schroder — sending healthcare providers, especially high-risk specialists, right back into the same doom spiral.

“You’ll have a reduction in available care to patients. You’ll have services that are going to become more scarce. You’ll have an overall increasing pressure on the cost of healthcare,” he says, adding that the threat of closures — whether it’s individual maternity wards or entire hospitals — could reemerge. “Plaintiffs’ lawyers very well could kill the goose that laid their golden egg.”

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