Pennsylvania Record

Wednesday, July 17, 2019

Secrecy surrounds letter that sparked Pa. Supreme Court's re-examination of medical malpractice venue rules

Lawsuits

By Nicholas Malfitano | May 8, 2019


PHILADELPHIA – A renewed debate over the rules governing venue for medical malpractice lawsuits in Pennsylvania was sparked by a letter written to the state Supreme Court late last year, asking the body to re-examine the issue.

It’s a letter the public may never see.

Supreme Court of Pennsylvania Justice Max Baer was the first person to publicly allude to the letter’s existence, in front of state senators at a budget hearing in Harrisburg on Feb. 26.

“Somebody wrote a letter to the Court, and the Chief Justice sent it to the [Civil Procedural Rules] Committee and said, ‘See what you think.’ And that letter was suggesting that after 16 years, the med-mal crisis had abated and we should go back to the venue rule that we had for the first 275 years of the commonwealth,” Baer said.

The author’s name is not publicly known, nor was it revealed by the Court. It appears to have been the catalyst for a Supreme Court committee featuring five attorneys who work at firms that file medical malpractice lawsuits to propose reinstituting rules more favorable to plaintiffs.

Several weeks ago, the Pennsylvania Record first contacted the Administrative Office of Pennsylvania Courts (AOPC) to obtain a copy of the letter. The publication was told that the document was not public and would not be released.

“The documents [requested] are part of a deliberative process and as such, are not public records,” said Stacey Witalec, Communications Director for the AOPC.

Subsequently, a request to obtain the letter was filed with the AOPC under Pennsylvania’s Right-to-Know Law, legislation which allows for members of the public to obtain records in certain circumstances.

Section 304(a) of the Right-to-Know Law specifically provides that judicial bodies must disclose financial records and as the letter does not fall under that category, a request to obtain the letter was denied for a second time, in writing.

The written denial provided the Pennsylvania Record with 15 business days with which to appeal the denial, to the Pennsylvania Judicial Center’s Rule 509 Appeals Officer. However, Pa.R.J.A. 509 deals with disclosure of financial records only.

A third attempt to reach out to the AOPC regarding the letter was also rebuffed.

“Records of public comment on medical malpractice are not public,” said Kimberly Bathgate, Assistant Communications Director for the AOPC.

Though not bound by the law to be released, the letter concerns an issue that has potential for great effect upon the state, the level of medical care Pennsylvanians receive and the ability of healthcare providers and medical professionals to conduct business in Pennsylvania - topics well within the public interest.

So, why will state judicial authorities not release it?

An official from the state Office of Open Records explained that entity does not have governance over the state judiciary – and therefore would not have the ability to disclose the letter or its contents.

Another source, speaking on condition of anonymity, confirmed the only remaining option for anyone interested in attempting to obtain the letter would be to initiate litigation against the Supreme Court of Pennsylvania.

The venue guidelines in question were brought into law subsequent to 2002’s Medical Care Availability and Reduction of Error (MCARE) Act and after a recommendation from the Interbranch Commission on Venue, which then ensured plaintiffs were only permitted to sue in the county where their alleged injury took place – a standard that currently remains in place.

In December, the state Supreme Court’s Civil Procedural Rules 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 and the Interbranch Commission's recommendation.

However, after the passage of a measure in the state Senate calling for a committee report on the effects of changing the current venue guidelines, the state Supreme Court decided to suspend any further action until that report is issued.

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 of Pennsylvania. They say those former venue rules were to blame for high malpractice insurance costs that caused fewer health care options for patients.

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

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