Changes in Medical Malpractice Lawsuits

February 2003

BY: Joseph H. Foster

On January 27, 2003, the Supreme Court of Pennsylvania adopted new Rules of Civil Procedure, effective immediately, in two areas which will greatly affect the way lawsuits can be filed against healthcare providers in Pennsylvania. One change concerns venue. The other change creates a new requirement in an effort to weed out nonmeritorious lawsuits. These Rules should be of great assistance to Pennsylvania healthcare providers.

The Old Venue Rule: Multiples Choices for Venue

The concept of venue refers to the county in which the litigation is brought. Heretofore, a healthcare provider such as a doctor or hospital could be sued in any county where the cause of action arose (i.e., usually where the treatment occurred), where personal service could be made, or where they conducted business. In addition, if venue was proper against any defendant named in the lawsuit, that lawsuit could be filed in any county where venue was proper as to any defendant. As a result, many cases were filed by plaintiffs’ lawyers in Philadelphia County where the verdicts are much higher than in upstate Pennsylvania or in the counties surrounding Philadelphia. Because of the significant exposure for Philadelphia County cases, there is a greater likelihood of substantial settlements.

The New Venue Rule: Venue is Proper Only Where the Cause of Action Arose

All this has been changed by the new venue Rules. Now, a healthcare provider can only be sued in the county where the claimed act of professional negligence (i.e., medical malpractice) actually occurred. Consequently, a healthcare provider cannot be sued in Philadelphia County for reasons such as conducting business in Philadelphia County or because some other defendant, not a healthcare provider, is amenable to suit in Philadelphia. In the event there are several different healthcare provider defendants who treated the patient in different counties, all can be sued in any county where the claimed negligence occurred by any named defendant.

As a result of this new venue Rule, there is mu ch less likelihood that healthcare providers will be hauled into Philadelphia County courts from counties outside of Philadelphia or from upstate Pennsylvania to defend themselves in medical malpractice actions. This should give physicians and their liability insurance carriers much needed relief.

While the Pennsylvania legislature did pass a venue statute effective December 17, 2002 that limits suits against healthcare providers to the county in which the cause of action arose, that statute had possible constitutional problems because the Pennsylvania Constitution grants only to the Supreme Court the power over rule-making and it could well be argued that this act of the legislature was unconstitutional as invading the sole province of the Supreme Court of Pennsylvania over civil rule-making. The fact that the Pennsylvania Supreme Court has now implemented the venue statute passed by the legislature should take care of that possible constitutional infirmity.

The New Certificate of Merit Requirement

The second Rule which should be of assistance to Pennsylvania healthcare providers and their insurers deals with what is known as a "Certificate of Merit." Now, in any lawsuit claiming professional negligence, the plaintiff must have a written statement from a qualified expert that ". . . there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable, professional standards and that such conduct was a cause in bringing about the harm. . . ". The Rule is subject to a very limited exception for cases where a licensed professional expert is unnecessary for the prosecution of the claim. The new Certificate of Merit requirement applies not only against each and every healthcare provider named in a lawsuit, but also any professional liability claim including those against accountants, architects, and even lawyers. The plaintiff must have the Certificate of Merit before filing the lawsuit or within sixty (60) days after filing the complaint. Sanctions are available against the plaintiff if the court determines that an attorney violates this Rule either by falsely claiming that the case is such that an expert is not needed, or by improperly certifying that an appropriate licensed professional has supplied the required written statement.

Conclusion

Together, these new Rules should greatly reduce the practice of naming a healthcare provider as a defendant only for the purpose of obtaining venue in Philadelphia county when there is no intention of proceeding against that Philadelphia defendant at trial. Some statistics indicate that the median cost to dispose of non-meritorious medical malpractice claims is about $8,000. The Certificate of Merit should greatly assist in weeding out non-meritorious claims.

About the Author: Joseph H. Foster is a senior partner and focuses his practice on the medical malpractice defense of physicians and hospitals. He is also Vice-Chair of the Supreme Court of Pennsylvania Civil Procedural Rules Committee. Mr. Foster can be contacted at 215-864-7043 or fosterj@whiteandwilliams.com.