Events since the January 1, 2023, implementation of the new venue rule for Pennsylvania have unfortunately confirmed the concerns raised by PAMED at the time the state Supreme Court ordered the change. Significantly more cases are being filed in Philadelphia and other plaintiff-friendly counties, skewing upward monetary judgments and settlements in medical malpractice cases. Before looking at these impacts, let us take a step back…
Background
By the late 1990s, the practice of medicine in Pennsylvania was under severe financial strain caused in large part by the negative impact of outsized medical malpractice judgments upon healthcare practitioners, insurers and patients. Both the General Assembly and Pennsylvania Supreme Court took action to address the problem. The General Assembly passed, and the then-governor signed a statutory fix. Unfortunately, that fix was invalidated by the courts as it impermissibly dealt with multiple subjects. The Supreme Court promulgated Rule of Civil Procedure 1006(a.1). This rule restricted the filing of a medical malpractice action to the county where the alleged deficient treatment was rendered. Previously, such cases could also be filed in any county where the defendant physician could be served with court papers.
Rule 1006(a.1) worked. The Pennsylvania Legislative Budget and Finance Committee (LBFC) studied venue for the period 1996 through 2018. The LBFC found:
- The cost of medical professional liability insurance in Pa. increased significantly from 1996 to its peak around 2007, before decreasing.
- The LBFC acknowledged that a change in the venue rule, coupled with the regionalization of hospital services, would likely have a destabilizing effect on the insurance market, at least in the short term, as insurers would likely have a more difficult time predicting costs.
- The number of medical malpractice filings decreased by 44.9 percent between the period of 2000-2002 and 2015-2017.
- Compensation for injuries from medical negligence by physicians decreased by 13.7 percent from 2003 to 2018.
- LBFC was unable to reach a conclusion on the impact of venue on patient access to healthcare. It noted that access to care involves many different variables including health insurance coverage and geographic locations.
Despite the positive change brought about by Rule 1006(a.1), in August 2022 the Supreme Court repealed the rule effective January 1, 2023. Here is a portion of the statement PAMED issued at the time:
“The Pennsylvania Medical Society staunchly condemns this enormous step backwards to the days of an unstable medical liability market and a mass exodus of physicians from this Commonwealth.
After twenty years of rebuilding towards a more robust physician presence and a better liability market in Pennsylvania the Supreme Court has, in essence, invited an unnecessary return to the “good old days” of stuffing trial lawyers’ pockets to the detriment of a steady and safe health care environment.
As we experienced in the late 1990s and 2000s, Pennsylvania will begin to see high risk specialists like orthopedists, neurosurgeons and trauma surgeons halt procedures, OB/Gyns stop delivering babies, and our highly trained residents choosing to leave Pennsylvania to practice in states that are more welcoming to them.
The bottom line is that the court has ignored over 5,000 comments from physicians, patients, and countless professional organizations across the state to the detriment of the safety and health of Pennsylvania patients.”
The impact of the rule change
The effects of the repeal of Rule 1006(a.1) were felt immediately. Philadelphia, the favored venue of plaintiffs, paints a stark picture. 2023 saw 544 medical malpractice cases filed in the Philadelphia Court of Common Pleas, an average of 45 cases per month. That is almost double the 275 cases filed in 2022 with Rule 1006(a.1) in effect. Of those 544 cases filed in 2023, 41 percent arose outside of Philadelphia and could not have been filed in Philadelphia absent the venue rule change. (Source: Philadelphia court data with analysis by the Pennsylvania Coalition for Civil Justice Reform).
The way ahead
At the end of 2024, two years after the venue change, the Civil Procedure Rules Committee of the Supreme Court will review the impact of the rule change. As detailed above, the change’s negative impact is readily apparent. While the need to return to the previous venue rule appears eminently sensible, the ideological make-up of the current Supreme Court makes it uncertain that the Court will reinstate Rule 1006(a.1) or something comparable.
PAMED, in coordination with the Pennsylvania Coalition for Civil Justice Reform and other aligned organizations, continues to pursue a solution that helps create a fair, sustainable venue scheme for Pennsylvania. The determination of what is the best course of action is ongoing as the two-year review of the rule change approaches. PAMED will keep members apprised of new developments on the venue front as they arise.