HARRISBURG – The Supreme Court of Pennsylvania’s Civil Procedural Rules Committee has green-lit such rules allowing plaintiffs statewide greater leeway in where to file medical malpractice liability cases, a move cheered by personal injury attorneys and criticized by health care and business interests.
The rules undo a change which went into effect in 2002, which stated that plaintiffs could only file medical malpractice lawsuits in the counties where they received their injuries. Now, with the new rules approved by the state Supreme Court, set to go into effect in 2023, plaintiffs will be able to sue medical defendants in counties where they do business or have established ties.
Curt Schroder, Executive Director of the Pennsylvania Coalition for Civil Justice Reform, decried the move.
“Nearly 20 years ago, a health care crisis in the Commonwealth led the executive, legislative and judicial branches to work together to stop venue shopping in medical liability cases – which was leading to skyrocketing liability premiums and threatening patient access to health care services. In the years since the rule was implemented, the rule has done exactly what it was designed to do. The Commonwealth’s medical liability environment was right sized as the number of medical liability cases filed in Philadelphia plummeted and medical liability premiums stabilized. Unfortunately, the success of the rule ultimately led to its demise – and now the Commonwealth risks history repeating itself,” Schroder said.
“Pennsylvanians will pay the ultimate price for this gift to plaintiffs’ attorneys. The state already suffers from the second highest medical malpractice payouts in the nation. Now that the Supreme Court has paved the way for plaintiffs’ attorneys to steer cases to high verdict courts, that number is expected to go up. And that won’t be the only negative impact. A recently released independent actuarial report commissioned by Senate Judiciary Chair Lisa Baker, found a rule reversal would lead to a substantial increase in premiums. Lancaster County, for example, could expect upwards of a 73 percent premium increase for hospitals and an 82 percent liability premium increase for physicians. Other counties mentioned in the report that would see substantial premium increases included Bedford, Chester, Clinton, Lycoming, Montgomery, Potter, Susquehanna, Tioga and Venango.”
The Hospital and Healthsystem Association of Pennsylvania (HAP) expressed “disappointment” with the state Supreme Court’s decision, which it says has “undone legal reforms that have protected Pennsylvanians’ access to health care for nearly two decades.”
“Two decades ago, all three branches of Pennsylvania government worked together to address a medical liability crisis that threatened Pennsylvania health care. Today’s rule change rejects their effective solution and again jeopardizes care. HAP and Pennsylvania hospitals fundamentally believe that patients deserve respect and a fair hearing to litigate malpractice claims. The legal rules in place for the past 20 years allowed that to happen,” HAP President and CEO Andy Carter said.
“When venue shopping occurred in 2002 and earlier, distorted payouts and skyrocketing malpractice insurance premiums made Pennsylvania one of the least attractive states in which to practice medicine. It became difficult to attract and retain providers in the commonwealth and hospitals had no choice but to cut services, particularly obstetrics and specialty care. With the COVID-19 pandemic, a historic workforce crisis, surging costs, and payment gaps, Pennsylvania’s health care system is extremely fragile. It is critical to rebuild and ensure hospitals’ viability so they can continue to care for patients and communities. Putting more financial pressure on hospitals and making it even harder to attract direly needed clinicians to the commonwealth will have a devastating effect on health care.”
The Supreme Court of Pennsylvania, in its adoption report explaining the ruling and the process by which it came to be, disagreed with opponents of the measure.
“It has been postulated that eliminating the special venue mandate for medical practice actions will cause health care providers, in general, to leave Pennsylvania. Insofar as negligent providers are held accountable in a court of law for their acts and exit Pennsylvania as an uninsurable risk, that outcome is preferred to protect patients within this Commonwealth from further harm. With utmost respect, it is suggested that efforts are better focused on reducing the occurrence of negligence rather than limit liability after the negligence,” the Court said.
“In sum, a majority of the Committee did not find justification for the continued disparate treatment of victims of medical malpractice as it pertains to venue. 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. Instead, a majority concluded that medical malpractice claims should be subject to the same venue rules applicable to other professional liability claims and tort claims in general. Likewise, defendants in medical malpractice actions can avail themselves of procedural mechanisms to seek a change in venue that are available to all other defendants in other types of actions.”
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.
Rep. Rob Kauffman (R–Franklin County) also brought forward House Bill 2660, which sought 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. The measure remains pending, though even if it were to be passed, the earliest it could be effectuated is the year 2025. Schroder urged the General Assembly to move forward with the bill in light of the Court ruling.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com