New Remedy Against Excessive Verdicts

By Richard A. Kolb and Joann Giangiulio

The Pennsylvania Supreme Court recently enacted a new Rule of Civil Procedure to try to curtail outrageous jury verdicts for pain and suffering in medical malpractice actions. Consistent with the provision for verdict reduction contained in the Medical Care Availability and Reduction of Error Act (“MCARE”) of 2002, new Rule 1042.72 establishes a procedure for reducing excessive non-economic damage awards. Rule 1042.72 mandates that when a health care defendant challenges an excessive award, the court must consider additional factors in determining whether the verdict is beyond reasonable compensation.

“Remittitur” is the common law principle under which a court can reduce an excessive jury award for damages. Traditionally, remittitur is quite rare, permissible only where a court finds that the verdict is “plainly excessive and exorbitant, or when it shocks the sense of justice so as to suggest it was influenced by partiality, prejudice, mistake or corruption.” When faced with a request for remittitur, before the new legislation and Rules of Civil Procedure for health care defendants, judicial review was limited. Courts could only consider the severity of the underlying injury, whether the injury was demonstrated by objective physical evidence versus subjective evidence, whether the injury was permanent, the plaintiff’s ability to continue employment, the disparity between the amount of plaintiff’s out-of-pocket expenses and the amount of the verdict, and the damages requested by the plaintiff in the complaint.

The Pennsylvania General Assembly recognized the devastating burden borne by the health care community from multi-million dollar verdicts for non-economic losses. Under MCARE, when a health care provider challenges a verdict on grounds of excessiveness, the trial court must consider the impact that payment of the verdict could have on the availability of health care in the community. Significantly, the trial court must consider evidence of the impact of an excessive verdict not just on the individual health care provider, but also on the broader health care community. In making this assessment, a court is expected to consider whether a challenged verdict could adversely affect the availability of health care in the community. For example, a court might consider how many health care providers are providing the same or similar type of service in that community, how accessible those services are in the community, and how an excessive verdict could affect the particular health care provider. The court may also consider whether payment of a verdict could result in the closure or reduced hours of a facility, a decreased number of staff members, or in diminished services offered by the facility or individual physicians.

In addition to the MCARE provision, Rule of Civil Procedure 1042.72 now provides a broader criteria for consideration: a damage award may be deemed excessive if it “deviates substantially from what could be reasonable compensation.” A court is required to consider the evidence supporting the plaintiff’s claim, the factors that should have been taken into account when making the award, and whether or not the damage award strongly suggests that the jury was influenced by passion or prejudice. If the defendant health care provider can convince the court that the award deviates substantially from what could be deemed as reasonable compensation, then the court must reduce the award. The Rule provides a new remedy for plaintiffs, too. If a plaintiff declines to accept the judiciallyreduced award, the court must grant a new trial limited only to those damages to be awarded for non-economic losses. Verdicts for liability, economic damages, and punitive damages may not be set aside under the Rule.

By enacting the new Rule, the Supreme Court has implicitly recognized that a trial judge may be in the best position to objectively review the plaintiff ’s evidence and determine whether an award for non-economic damages is justified. Still, if a trial judge refuses to reduce an excessive pain and suffering award, he or she must issue an opinion justifying that refusal, including a discussion of the impact to the health care community of the unreduced verdict. Thereafter, if an appellate court believes the trial judge’s refusal to reduce the award is an abuse of judicial discretion, that higher court may reduce the award.

New Rule 1042.72 applies to all health care cases for which a verdict or decision is rendered after December 1, 2004. Also, the new Rule contains a sunset provision through under which the Rule will expire in five years unless expressly continued by the Pennsylvania Supreme Court. In the meantime, however, health care providers have a new tool to rein in runaway juries.

Dick Kolb is Chair of the Healthcare Group. He can be reached at 215-864-7112 or kolbr@whiteandwilliams.com.
Joann Giangiulio is an associate in the Healthcare Group and can be contacted at 215-864-6348 or
giangiulioj@whiteandwilliams.com.