Venue back on the menu? Proposed rule change could shift the landscape of medical malpractice in the Commonwealth

By Alina Chuklin, Sydney Melillo, Lawrence Tabas Pennsylvania Source

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  • February 27, 2020

SOURCE: JD SUPRA

Change may be coming soon to Pennsylvania’s medical malpractice venue rule (Rule 1006(a.1))—a change that could send medical malpractice filings in Philadelphia skyrocketing. Last week, the Legislative Budget and Finance Committee (the “Legislative Committee”) released a report on the potential impact of eliminating the medical malpractice venue rule, which has renewed debate on the issue of where medical malpractice patients should be allowed to file.

The current rule, adopted in 2003, requires plaintiffs to file malpractice actions in the county where their injury occurred, unless that injury occurred outside the Commonwealth. By eliminating the rule, plaintiffs could file in any county where the defendant resides or regularly conducts business. In an age of ever-increasing consolidation in the health care services market, this change would allow more plaintiffs than ever to file in Philadelphia, where medical malpractice plaintiffs have a much higher rate of success.

The move to eliminate the medical malpractice venue rule dates back to December 2018 when the Supreme Court’s Civil Procedure Rules Committee (“Rules Committee”) determined that the rule “no longer appears warranted.” However, the Rules Committee delayed its plans so that the Senate could study the potential impact of the proposed change.

Released to the public last Monday, the Legislative Committee’s report made no recommendations regarding the proposed rule change, citing the complexity of the issue, the lack of adequate available data, and the limited scope of the study. Notably, the report did not draw any conclusions as to what impacts eliminating the medical malpractice venue rule may have. Nevertheless, advocates on both sides of the issue found support for their position within the report’s 200 pages.

Advocates in favor of maintaining the status quo cite the report’s repeated mentions that this proposed change could destabilize the medical professional liability insurance market. Insurers operate on stability and predictability, and changing the venue rule when hospital chains are expanding to serve new regions can disrupt a predictable market. In fact, a destabilized insurance market was one of the very reasons that legislators originally proposed the medical malpractice venue rule in 2002, upon discovery that practitioners were relocating their practices outside the Commonwealth or even retiring early because they were unable to find affordable medical liability coverage in Pennsylvania.

Opponents of the proposed change further cite the report’s 150+ pages of exhibits showing the medical malpractice venue rule’s clear effect on court filings and jury verdicts. To these opponents, eliminating the venue rule would mean a return to the days of forum shopping in Pennsylvania medical malpractice cases. Before the medical malpractice venue rule was enacted, malpractice filings in Philadelphia county were at double the national median, and verdicts in the Commonwealth were higher than any neighboring state and nearly one-third above the national average. Since the venue rule was adopted, medical malpractice filings in Philadelphia county have fallen by 67.7%, and jury awards have fallen 13.7% throughout the Commonwealth.

Conversely, plaintiffs’ advocates highlight that the report failed to draw any concrete conclusions regarding the effect of the prior rule changes. Such advocates claim that medical malpractice defendants should be subject to the same rules as any other non-government defendant and that the proposed change would reverse only one of a number of medical malpractice tort reform measures instituted in 2003.

The next steps in the rule change process are uncertain. Now that the Legislative Committee has issued its report, the Pennsylvania Supreme Court could technically take action at any time. However, it is more likely that there will be another round of public hearings and public comments once stakeholders and legislators have had time to digest the findings within the report. The chair of Obermayer’s Professional Liability Practice Group and the Catastrophic Loss Group, Gary Samms, Esq., has been involved in the opposition to this proposed rule, and will likely testify should the legislature hold further hearings regarding the change.