HARRISBURG – A legal reform group has asked a Supreme Court of Pennsylvania committee to immediately issue a report on the impact of its decision to allow plaintiffs greater flexibility in where to file medical malpractice cases, nearly six months after the rule change went into effect.
The Supreme Court of Pennsylvania’s Civil Procedural Rules Committee’s move last year to change a rule placing venue guidelines on medical malpractice liability cases, which had been in place for two decades, was cheered by personal injury attorneys and criticized by health care and business interests.
The new rule undid 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 rule approved by the state Supreme Court, which went into effect at the beginning of this year, plaintiffs are able to sue medical defendants in counties where they do business or have established ties.
The change looks to have had an immediate impact in Philadelphia: 258 med-mal cases have been filed in Philadelphia courts in just the first five months of 2023, versus 275 med-mal cases filed in Philadelphia courts for the entire year of 2022.
Curt Schroder, Executive Director of the Pennsylvania Coalition for Civil Justice Reform, led the charge in calling for an official report on how the new rule has changed the game for medical malpractice litigation statewide, for that report to be issued as soon as possible and the effects of the rule change which are already being felt.
According to a tenet of the rule change, the Supreme Court of Pennsylvania’s Civil Procedural Rules Committee is currently subject to review the med-mal civil venue rule two years after its effective date, meaning Jan. 1, 2025.
“Venue rule change resulted in increased number of medical malpractice cases in Philadelphia starting in January 2023.’ Philadelphia County Court of Common Pleas Judge Daniel Anders went on to state that he estimates a 25% to 50% increase in medical malpractice cases will be filed in Philadelphia this year, over pre-pandemic levels, because of the change in venue rules. The total number of medical malpractice case filings should be between 500 and 600, according to Judge Anders,” Schroder said, in a recent letter to the Supreme Court of Pennsylvania’s Civil Procedural Rules Committee.
“The increase in doctors and hospitals from other parts of the state being sued in Philadelphia has predictably impacted the cost of their liability insurance. According to information provided by the Medical Professional Liability Association (MPLA), these increases are a direct result of the increased exposure to liability and damages that accompanies being sued in Philadelphia. And with new records being established, such as recent $182.7 million, $43.5 million, and $25.9 million Philadelphia verdicts in 2023 alone, the pressures on malpractice insurance premiums will continue to grow as more and more plaintiffs’ attorneys seek to cash in by suing in Philadelphia.”
Schroder continued by reiterating the upswing in med-mal filings in Philadelphia courts, the effects of which he predicted would be felt across Pennsylvania.
“53 new medical malpractice cases were filed in Philadelphia in May 2023. This number continues to be higher than previous months of May going back to 2017. The average number of medical liability cases filed each month in 2023 is now up to 52. The average monthly number of cases filed to date in 2023 far exceeds any monthly average of the previous six years,” Schroder added.
“It needs to be stressed that the issue here goes well beyond the Philadelphia courts. The new venue rule has changed the location of case filings across the state, according to malpractice defense attorneys. PCCJR at this time is only able to track and analyze the Philadelphia-filed cases. Should we conduct a review of case filing patterns elsewhere in Pennsylvania, we will so inform the committee.”
Schroder stated that “in light of the soaring increase in medical liability filings in Philadelphia, the concomitant increase in medical liability premiums with larger increases no doubt imminent, and the impact on the Philadelphia County Court of Common Pleas, there is no reason to wait two years to review the impact of Rule 1006 as amended on Aug. 25, 2022.”
“PCCJR urges this committee to conduct an immediate review of the expanded venue rule to determine whether rescission or some other changes are necessary to protect patient access to health care and ensure a smooth-functioning court system,” Schroder said.
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 warned that a health care crisis in the state could return if pre-Medical Care Availability and Reduction of Error (MCARE) Act venue guidelines were implemented by the Supreme Court of Pennsylvania. They say that the former (and once again, current) venue rule was to blame for high malpractice insurance costs that caused fewer health care options for patients in the late 1990s and early 2000s.
The former medical malpractice venue guideline in question was 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. Its advocates argued that standard led to a significant drop in medical malpractice litigation across the state.
However, a renewed debate over the rule governing venue for medical malpractice lawsuits in Pennsylvania was sparked by a letter written to the state Supreme Court late in 2018, which asked the body to re-examine the issue.
It appeared 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 a venue rule 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.
The change of rule this year has allowed 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. 2 “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 guideline 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 medical malpractice venue rule 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.
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com