Supreme Court considers overriding 2002 med-mal reform; Groups warn it could create another health care crisis

By Nicholas Malfitano | Jan 16, 2019


HARRISBURG – Pennsylvania plaintiffs attorneys could possibly be allowed to pick and choose where they'd like to file medical malpractice lawsuits, as a state Supreme Court committee is considering the elimination of rules passed by lawmakers 17 years ago.

Venue guidelines governing medical malpractice litigation statewide that were brought into law through 2002’s Medical Care Availability and Reduction of Error (MCARE) Act may be abandoned by the Supreme Court of Pennsylvania’s Civil Procedural Rules Committee.

In December, the committee proposed changes that would permit plaintiffs to sue in any venue where a medical defendant conducts business, reminiscent of the way such lawsuits were allowed prior to the MCARE Act’s passage.

The MCARE Act ensured plaintiffs were only permitted to sue in the venue where their alleged injury took place, a standard that currently remains in place.

David L. Kwass, an attorney with Saltz Mongeluzzi Barrett & Bendesky in Philadelphia, serves as the committee’s chairman. Kwass declined to comment.

MCARE’s Statistical Impact On Medical Malpractice Litigation In Pennsylvania

Statistics provided by the Administrative Office of Pennsylvania Courts (AOPC) show an overall decrease in medical malpractice claims filed statewide after the MCARE Act’s passage, in all but 11 of Pennsylvania’s counties.

For example, in Allegheny County, there were an average of 396 such cases filed between 2000 and 2002. Fifteen years after the MCARE Act was passed and through a steady decline, that number went down to 224 cases in 2017 - a drop of 43 percent.

In Philadelphia County, there was an average of 1,204 such cases filed between 2000 and 2002. By 2017, that number had decreased by nearly 800, down to 406 cases - representing a 66 percent drop.

The 11 counties where filings increased were Bedford, Bucks, Crawford, Greene, Indiana, Lancaster, Lawrence, Luzerne, Montgomery, Washington and Wayne. In each of those cases, though the percentage increase was high, it did not necessarily lead to a large number of filings, with the lone exception being Montgomery County. There, it went from 22 cases on average over 2000-2002, to 107 in 2017. This represented an increase of 386 percent.

Statewide overall, Pennsylvania went from seeing an average of 2,733 medical malpractice filings from 2000 to 2002, to having that number decrease 47 percent to 1,449 in 2017.

Legal Reform, Industry Groups Oppose Proposed Venue Rule Changes

Opposition to the changes emanate from a number of groups that applaud the MCARE Act and vigorously question why there would now be a change in course.

Pennsylvania Coalition for Civil Justice Reform (PCCJR) Executive Director Curt Schroder warned a rollback of the rules instituted through the MCARE Act had the potential to result in another “crisis” of extensive medical liability litigation throughout Pennsylvania and would be a “huge step backwards for judicial fairness and medical access.”

“The proposed rule change would result in a flood of suits against doctors, hospitals and long-term care providers, being filed in the notorious Philadelphia court system, known for its jackpot verdicts, as well as in counties with similar records of unrestrained jury awards. Such a move would roll back a significant reform that helped stem the last medical liability crisis in 2002,” Schroder stated.

“This rule change ignores history and puts new mothers, older Pennsylvanians and anyone needing a specialist at risk of losing access to quality healthcare. The practice of venue-shopping was an integral part of a health care crisis in Pennsylvania before and should this rule change be adopted, we run the risk of repeating history.”

Schroder opined that the practice of forum-shopping was a direct contributor to high health insurance premiums in Pennsylvania in the early 21st Century, prior to the MCARE Act’s passage.

The Pennsylvania Chamber for Business & Industry’s Vice President of Government Affairs, Sam Denisco, provided some history as to where Pennsylvania once stood with medical malpractice litigation and why the MCARE Act was passed in 2002.

“In the early 2000’s, then-Gov. Ed Rendell had declared a ‘crisis’ that medical professionals were leaving the commonwealth, mainly due to the fact that their medical malpractice insurance premiums were through the roof and they were going to other states because they were not affordable,” Denisco said.

Denisco said that the goal and intent of the MCARE Act was to create an omnibus piece of legislation aimed at addressing the crisis on a number of fronts: Legal reform, capping punitive damages, mandating the inclusion of certificates of merit with legal complaints and to convene a bipartisan group called the Interbranch Commission, from among the legislative, executive and judicial branches of Pennsylvania government, to study the specific issue of case venue and its impact on the medical malpractice litigation crisis.

“This group was put together and... in August of 2002, they came up with a report in which the majority concluded that [the issue of venue] is a problem and that venue in medical malpractice civil complaints should be filed in the county where the cause of action arose,” Denisco added.

As a result, the MCARE Act was passed through what Denisco labeled “a thoughtful process.”

In contrast, Denisco communicated concerns over a possible lack of “process” and “transparency” surrounding ongoing discussions over the proposed rule changes.

“If there was a process 16 years ago that worked, why are we reverting? That is the question we want to seek an answer to,” Denisco stated.

Andy Carter, President and CEO of the Hospital & Healthsystem Association of Pennsylvania (HAP), expressed similar sentiments.

“The Pennsylvania Supreme Court Civil Procedure Rules Committee’s recent proposal to reverse venue shopping rules will compromise patient access to care, drive physicians and nurses away from Pennsylvania, and chip away at the foundation that we have laid to improve the medical liability climate in the state,” Carter said.

“One of the leading causes of the medical liability crisis of the early 2000’s was the practice of venue shopping. During that time, trial attorneys looked for every opportunity to pull cases into Philadelphia and Allegheny counties, where jury awards were consistently higher.”

Carter added his belief that the committee “had not shown its work” to explain why such a change is necessary after nearly 17 years, a time period during which Pennsylvania’s medical liability environment has “steadily improved.”

“Reversing venue-shopping rules runs counter to all of our current efforts to ensure that every Pennsylvanian has access to the right care in the right place at the right time. We ask the committee to withdraw this unproven proposal,” according to Carter.

The Supreme Court’s Civil Procedural Rules Committee is accepting comments, suggestions or objections to the proposed rule changes from all interested parties until Feb. 22 at civilrules@pacourts.us.

Subsequent to that deadline, the committee may choose to withdraw its proposed changes, amend them further or send them to the state Supreme Court. If the last option is chosen, Pennsylvania’s highest court will then render the final decision.

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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Organizations in this Story

Court of Common Pleas of Allegheny County Pennsylvania Chamber of Business and Industry Pennsylvania Coalition For Civil Justice Reform Pennsylvania Supreme Court

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