Medical Malpractice Alert: Proposed Elimination of Venue Protections for Health Care Providers

By Michael K. Feeney
Shareholder, Matis Baum O’Connor

The Civil Procedural Rules Committee of the Supreme Court of Pennsylvania has proposed complete elimination of the venue protections afforded to Pennsylvania’s health care providers. Currently, Pennsylvania Rule of Civil Procedure 1006 requires that all medical malpractice cases be brought “only in a county in which the cause of action arose.” The rule was designed to prevent forum shopping, i.e., filing a case in a county that historically produces bigger verdicts, even though the underlying facts of the case may have transpired elsewhere.

The proposed rule change, filed on December 21, 2018, wipes away this protection entirely. The stated reason? The Committee’s Explanatory Comment states: “The current rule provides special treatment of a particular class of defendants, which no longer appears warranted. Data compiled by the Supreme Court on case filings on medical professional liability actions indicates that there has been a significant reduction in those filings for the past 15 years. Additionally, it has been reported to the Committee that this reduction has resulted in a decrease of the amount of claim payments resulting in far fewer compensated victims of medical negligence. The proposed rescission . . . is intended to restore fairness to the procedure for determining venue regardless of the type of defendant.”

This proposed rule change is likely to have a profound negative impact on Pennsylvania’s health care providers. It will surely result in more cases being filed in big counties that are renowned for big verdicts, as opposed to smaller outlying counties. Additionally, it will likely slow the wheels of justice in those larger counties, as caseloads are likely to increase significantly.

Fortunately, the comment period has not yet closed and remains open through February 22, 2019. We would therefore recommend that all of our clients contact their physician membership organizations and advocacy groups to ensure that the voices of Pennsylvania’s health care providers are heard. Comments, suggestions, and objections to the proposed rule change may be submitted to:

Karla M. Shultz, Counsel
Civil Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
FAX: 717-231-9526
civilrules@pacourts.us

It is worth noting that Section 5101.1 of the MCARE Act, a Pennsylvania statute enacted in March 2002, provides the same venue protections that are slated for elimination under the proposed rule change. The Supreme Court of Pennsylvania, however, is likely to take the position that it has sole and exclusive control of the judicial system, including the rules governing it, pursuant to Article V of the Constitution of the Commonwealth of Pennsylvania. In other words, this proposed rule change could give birth to litigation that could eventually invalidate some or all of the MCARE Act.

The full text of the proposed rule change is available here.

The cited statistics for Pennsylvania medical malpractice cases are available here.

Attorney Feeney is a Shareholder at Matis Baum O’Connor and focuses his practice on medical malpractice defense, hospital, nursing home and assisted living facility litigation, appellate matters, and personal injury litigation. He is also an experienced Amicus practitioner, having represented various physician membership organizations at all levels of litigation, including before the Supreme Court of Pennsylvania.