HARRISBURG – The Pennsylvania Senate will study whether forum-shopping by medical malpractice lawyers raises health care costs in the state - a move that comes as the state Supreme Court considers allowing those lawyers to file cases in the courts of their choosing.
The Legislative Budget & Finance Committee will conduct the study, and senators have also requested that the Supreme Court delay any action on the issue until it is completed.
On February 5, Senate Resolution 20, introduced by Senate Judiciary Chair Lisa Baker, passed with a vote of 31-18. All Republican Senators present voted in favor of the resolution, along with support from Democrats Lisa Boscola, Andrew Dinniman and Judy Schwank.
Per the resolution, the Legislative Budget & Finance Committee will hold at least one public hearing on its study of how venue and rule standards affect the state and report its results by Jan. 1, 2020.
The Senate action comes as the state Supreme Court's Civil Procedural Rules Committee is considering making changes to the venue guidelines governing medical malpractice cases, effectively repealing a 2002 law known as the MCARE Act that requires those cases to be filed in the county in which the alleged injury occurred.
Business and legal reform groups warn that a health care crisis in the state could return if pre-2002 venue guidelines are implemented by the Supreme Court. They say those former venue rules were to blame for high malpractice insurance costs that caused fewer health care options for patients. Philadelphia is one of those areas and still draws out-of-state plaintiffs seeking one of its trademark multimillion-dollar verdicts.
There has been an overall decrease in medical malpractice cases since the 2002 law went into affect.
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.
Trial lawyers "cashing in" on Supreme Court's authority?
One constitutional law expert explains that the Supreme Court has the authority to institute changes to these venue guidelines.
On the possible blurring of the lines between the state’s judicial and legislative branches, Bruce Ledewitz, Associate Dean & Professor at Duquesne University School of Law, said, “That’s an issue, yes.”
However, Ledewitz pointed to Pennsylvania’s Constitutional Convention in 1968 and explained it was codified at that time for the state Supreme Court to have “enormous authority to write what are, in effect laws, in certain areas, including procedure in the courts.”
An action resolved in the Commonwealth Court more than 15 years ago appeared to uphold that perspective. In North Central Pennsylvania Trial Lawyers Association v. Weaver, the 5-2 majority said venue rules are "the exclusive authority of the Supreme Court."
Dissenters said the General Assembly held that power.
Ledewitz explained the holding of the case, that civil court venue is exclusively controlled by the Supreme Court of Pennsylvania, remains the law and has not been overturned or criticized.
“That means that the committees that act with the authority of the [state Supreme] Court can adopt venue rules that contradict any legislation on the topic. I don’t know that we’re the only state like that, but we must be among the most vigorous in giving the Supreme Court in this state power to overturn statute," Ledewitz said.
Yet, Ledewitz explained that the MCARE Act provided for the creation of the Interbranch Commission, a bipartisan group from among the legislative, executive and judicial branches of Pennsylvania, to study the specific issue of case venue and its impact on the medical malpractice litigation crisis.
“But, I don’t understand what happened next,” Ledewitz said, asking why the Interbranch Commission was formed if the question of venue guidelines had been solved by MCARE and why the forthcoming venue rules weren't deemed unconstitutional from the start more than 16 years ago.
“The question is, when were the rules that are currently being challenged by the committee actually written and who wrote them? I don’t think it was the MCARE Act itself. The North Central Pennsylvania Trial Lawyers Association case is dealing with something else, not with MCARE. But it was on the topic of venue for medical malpractice,” Ledewitz stated.
While offering no opinion one way or the other on the idea of rescinding the current venue rules, Ledewitz said that opponents of restoring the medical malpractice venue guidelines back to their pre-2002 standard have a problem, in that Pennsylvania voters have no direct say in the process of what the state Supreme Court adopts.
Ledewitz also speculated that plaintiffs attorneys and their activity in judicial politics in Harrisburg may play a role in the movement influencing the rescission of the current venue guideline standards back to their pre-2002 form.
“The trial lawyers are very active in judicial politics, in campaign contributions to judicial candidates. Plus, naturally enough, almost all judges have ties to this group, trial attorneys in general. But it’s in the financial interest of lawyers on both sides that there be a case,” Ledewitz said.
“The trial lawyers, the people who do tort litigation, they’re the ones who pushed through this increase in power for the Supreme Court of Pennsylvania in the first place, in the 1968 Constitutional Convention. It’s widely rumored that they were behind it, and this is an example of cashing in on the change. The real question is why did it take them 16 years to make an attack on it? That I don’t know.”
The Supreme Court of Pennsylvania’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