HARRISBURG – The Chairman of the Pennsylvania House of Representatives Judiciary Committee has introduced legislation to amend Pennsylvania’s constitution to prohibit venue shopping in medical liability cases, a potential game-changer for civil litigation statewide if it were to be passed.
Rep. Rob Kauffman (R–Franklin County) brought forward House Bill 2660, which seeks to clarify and cement in the Pennsylvania Constitution under Article V, Section 10(c) that the General Assembly may establish the venue of a civil lawsuit by statute.
As prescribed in the Pennsylvania Constitution, language for a proposed amendment must pass the state General Assembly in two consecutive sessions, prior to going before the voters in a ballot referendum.
According to Kauffman, such language relating to civil case venue is a much-needed reform.
“The ‘venue’ of a case refers to where – i.e., in which county’s courts – the case may be initiated. While the Pennsylvania Constitution expressly states that the General Assembly shall determine the ‘jurisdiction’ of cases – i.e., which court has the power to hear a case – it is silent on venue. Over Pennsylvania’s history, the General Assembly and the Judiciary have shared this role, with the Judiciary establishing venue generally by rule, while the General Assembly has established venue in specific forms of cases by statute,” Kauffman said.
“Accordingly, while the Judiciary long ago promulgated rules on civil venue, also existing in harmony with those rules are special statutory venue provisions as varied as those addressing decedents’ estates, juvenile dependency proceedings, human trafficking victim compensation, actions against Commonwealth parties, appeals of private arbitration awards and many more topics.”
Kauffman claims that the Supreme Court’s Civil Procedural Rules Committee has “increasingly advocated to overturn a special venue rule for medical malpractice liability lawsuits”, leading to friction between the state’s legislative and judicial branches of government.
“The current rule was arrived at through joint action of the branches in the late 1990s and early 2000s to resolve a crisis in medical liability costs so severe that it resulted in health care providers closing or retiring early. The current rule neutrally requires medical malpractice lawsuits to be filed in the county where the medical care occurred. Eliminating this rule could not only tip off a recurrence of the liability crisis that the current rule was established to resolve, but may also inflame conflict between the Judiciary and the General Assembly,” Kaufman said.
“In an effort to reinforce comity between the branches, as it existed for decades if not centuries previously, my proposed constitutional amendment will explicitly state that the General Assembly may establish the venue of a civil lawsuit by statute. This will not strip the Judiciary of its general authority to prescribe rules for venue, but it will settle the rising conflict over whether this is a shared area of constitutional authority.”
Curt Schroder, Executive Director of the Pennsylvania Coalition for Civil Justice Reform, applauded the move.
“Pennsylvania has seen firsthand the negative impacts venue shopping can have on access to health care and jobs. We can’t afford to go back to the days when rampant venue shopping led to skyrocketing liability premiums – driving many physicians and specialists out of the state. Rep. Kauffman’s proposed constitutional amendment addresses this issue by bringing much needed checks and balances to the venue rule. I encourage members of the General Assembly to support this critical effort and vote for HB 2660,” Schroder said.
History of Med-Mal Venue Rules in Pennsylvania
Business and legal reform groups have warned that a health care crisis in the state could return if pre-Medical Care Availability and Reduction of Error (MCARE) Act 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 in the late 1990s and early 2000s.
The current medical malpractice venue guidelines in question were brought into law subsequent to 2002’s 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. Its advocates affirm that the change led to a significant drop in medical malpractice litigation across the state.
However, 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 in 2018, asking the body to re-examine the issue.
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 venue rules more favorable to plaintiffs, allowing them to sue wherever 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.
Changing the rules would allow plaintiffs’ attorneys to choose whichever eligible county they’d think would be likeliest to give out a jackpot. Philadelphia, for example, is known nationwide for its high-dollar jury verdicts and was recently named the No. 4 “Judicial Hellhole” – a designation given by a tort reform group that considers whether businesses get a fair shake in certain jurisdictions.
But after the passage of Senate Resolution 20 in February 2019, calling for a committee report on the effects of changing the current venue guidelines to be written and completed before the end of by the end of that year, the state Supreme Court decided to suspend any further action until the report was issued.
That report was issued in February 2020, though it did not make any clear-cut recommendation as to whether the current medical malpractice venue rules should or should not be changed based on statewide trends in insurance rates, health care access and the number of lawsuits filed.
Since the issuance of the report, that was followed by a controversial ruling from the Supreme Court of Pennsylvania in December 2021 in Lageman v. Zepp Et.Al, which provided that medical malpractice case juries can consider both direct and circumstantial evidence, under the res ipsa loquitur doctrine.
The doctrine allows for assumption of injuries as a result of negligence, in circumstances where such plaintiffs can prove that the doctrine is but one way to determine liability.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com