Article by Ashley Griffin
The Medical Care Availability and Reduction of Error Act, otherwise known as the MCARE Act, 40 P.S. §1303.101, et. seq., was enacted in 2002 to curb the medical malpractice litigation crisis that was sweeping the Commonwealth. With the enactment of MCARE, the Pennsylvania Supreme Court also changed the venue rules in Pennsylvania. From that point forward, Pa.R.C.P. 1006(a.1) dictated that medical malpractice cases could only be filed in the “county in which the cause of action arose,” in other words, the county where the alleged malpractice took place.
This venue rule change was enacted to prevent “forum shopping” by plaintiffs’ counsel in medical malpractice lawsuits. Forum shopping is a practice whereby a plaintiff seeks to file his or her case in a county known for awarding large jury verdicts to malpractice victims. Prior to the venue rule changes in the early-2000s, forum shopping was a practice that forced defendant-physicians to litigate cases in counties that may have been entirely foreign to them, and/or a county where they had only tenuous business ties. Forum shopping led to:
- inconvenience
- greater expense for the parties, and most importantly,
- potential hostility from jurors ruling on cases which involved physicians or health systems that were ‘outsiders’ to them, and who had no apparent ties to their communities.
Over the past decade and a half, the MCARE Act has fulfilled its goal of reducing frivolous or meritless medical malpractice case filings. For example, in 2002 alone, Philadelphia County had over 1,200 med-mal case filings. As of 2017, that number has been significantly reduced to just over 400 case filings—a 66% reduction. Likewise, Allegheny County has seen its med-mal case filings drop from approximately 400 in 2002 to 224 in 2017.
In December 2018, the Pennsylvania Supreme Court’s Civil Procedure Rules Committee proposed elimination of the current venue rule, citing these case-filing statistics. The Committee took evidence of decreased case filings to show that the venue rule – at least in its current form – may no longer be warranted in order to curb frivolous med-mal filings. The Committee also concluded that perhaps the venue rule had done its job a little too well, noting concern that a large reduction in filings across the Commonwealth suggested that victims of medical negligence were perhaps not filing their cases at all, and therefore, that justice was not being properly served.
As expected, the Committee’s recommendation to repeal the med-mal venue rule was met with fierce opposition by the defense bar, malpractice insurance companies, and professional societies like the Pennsylvania Medical Society (PAMED). PAMED has even gone so far as to publish a pamphlet, aimed at healthcare professionals, seeking to educate them on the devastating effect that a potential venue rule change may have on them. For example, if the proposed changes were to be enacted, a doctor could now be sued in a county where he or she maintains a house or residence. Further, a case could be filed in a county where any “transaction or occurrence relating to that lawsuit” took place (an example would be the county where an x-ray is read in the course of treatment if that county differs from where “the malpractice took place.”) Also, certain hospitals or practice groups could now be sued in any county where they have property, or any county where they otherwise conduct business, have business connections, or perhaps even advertise. It is apparent that the proposed venue rule changes would significantly expand a healthcare provider’s exposure to be sued in a number of different counties – some potentially very far away from where the malpractice actually took place – where there appears to be very little nexus to the underlying malpractice suit.
Due to the overwhelming number of letters and comments received by the Supreme Court Rules Committee on this issue, a decision has been made to delay any consideration of the venue rule change—at least for now. The Pennsylvania Senate has released a statement saying that it is appointing a bipartisan legislative committee to perform its own investigation of the issue. This committee will then make recommendations to the Supreme Court and the Rules Committee about how to act.
For now, while both the state legislature and the judiciary undertake additional investigation, the state of the venue rule remains unchanged. .,. It is promising that the legislature, the Supreme Court, and its Committee recognize the magnitude of this rule change , and are proceeding cautiously and slowly. Yet, the purported rationale provided by the Rules Committee to change the venue rules in the first place seems misguided. The Committee appears to be recommending venue rule changes hoping it will increase med-mal case filings across the state, and that increased case filings will somehow l balance the scales of justice that were perhaps thrown off kilter by the enactment of the MCARE Act all those years ago. Yet, there appears to be no evidence to suggest that plaintiffs or plaintiffs’ attorneys choose not to file a medical malpractice case simply because the current venue rule prevents them or discourages them from doing so. A change in venue rules will not lead to any rebalancing of the scales of justice; rather, it will lead to the same type of forum shopping that the courts sought to discourage all those years ago. Great interest lies in how the Commonwealth will approach this issue in the upcoming months.
Burns White, LLC will continue to monitor developments with regard to the proposed venue rule changes. If you have any questions or comments about this topic, or desire an update in the future, please contact Ashley L. Griffin at algriffin@burnswhite.com.