Last month was an important one for medical malpractice law in Pennsylvania. In an era where regional medical oligopolies dominate the landscape, where you would potentially be able to sue in a medical malpractice claim is a central question as to whether justice might be served in your case.
An order of the Supreme Court of Pennsylvania issued on August 25th, removed, for all practical purposes, the two-decade-old requirement that medical malpractice matters be brought only in the county where the alleged malpractice occurred.
The order amends Rules 1006, 2130, 2156, and 2179 of the Pennsylvania Rules of Civil Procedure and will allow, effective on January 1st, medical malpractice plaintiffs to bring a lawsuit anywhere in the state where the healthcare provider regularly conducts business.
This is critically important as the now-overturned 2003 rules change allowed medical malpractice plaintiffs to file suit only in the county where the harm took place. That disfavored some plaintiffs as juries in some of Pennsylvania’s more conservative counties are less amenable to malpractice cases and tend to give lower verdicts if they side for the plaintiff at all.
I talked to Jason Matzus, a Pittsburgh medical malpractice lawyer, who has been arguing in favor of this change for over a decade. Matzus sets forth a compelling argument as to why Pennsylvania was right to make these rules changes and return the venue rules to their pre-2003 status when medical malpractice defendants were subject to the exact same venue rules as all other non-governmental defendants.
Back in 2017, Matzus wrote a letter to the Civil Procedure Rules Committee that was used as an exhibit in the Pennsylvania legislative hearings on this issue. Matzus argues that the post-2003 venues changes were fundamentally unfair as:
“Various legislative and judicial reform measures were enacted that created special rules for medical malpractice defendants that treated them more favorably (i.e,, privileged) than other civil defendants.”
He also had a compelling quantitative argument, as the metrics as far back as 2017 helped tell the story as to why the 2003 rule change was no longer needed:
“Overall, there has been a 43.6% decrease in medical malpractice filings in the past 15 years, down from 2,733 in 2000-2002 to 1,541 in 2016. In Philadelphia County alone, Pennsylvania's largest county, there has been a 68.6% decrease in medical malpractice filings over that same time period, from 1,204 to 378. Allegheny County, Pennsylvania's second-largest county, witnessed a decrease of 31.6% over that same period, from 396 to 271 filings. Likewise, payouts by MCARE, the excess insurer for all Pennsylvania physicians and hospitals, have decreased by 54% from $378,720,772 in 2003 to $173,955,487 in 2016.”
And for those who think that getting a medical malpractice case to trial is a high-percentage win, Matzus points out that this simply wasn’t the reality in Pennsylvania:
“The data further reveals that very few cases that go to trial are decided in the plaintiff's favor. Statewide, in 2016, 110 medical malpractice cases were tried to verdict, and 84.5% were defense verdicts; in 2015, 78.4% of the 102 medical malpractice cases tried to verdict.”
As Matzus told me:
“It is fundamentally unfair to Pennsylvania’s medical malpractice plaintiffs to allow defendants to play by a set of rules different from those of other non-government defendants in the state.”
It’s important to remember that a medical malpractice plaintiff can’t simply choose any county in Pennsylvania that they want - there has to be this nexus of the defendant “conducting business” in that county. And, as Matzus pointed out:
“Any defendant, including a medical malpractice defendant, has a remedy available if that defendant believes that the venue (county) in which the defendant has been sued is inconvenient and another more appropriate forum exists. Thus, a special venue rule for malpractice defendants necessarily implies that the current rules regarding forum non-conveniens are deficient. Yet, they work well for every other class of defendant.”
This is the heart of the argument in Pennsylvania and any other state with special venue rules for medical malpractice defendants.
As to what these rules changes will mean for the future of malpractice litigation in Pennsylvania, some are concerned with this “doing business” test and case management issues in places such as Philadelphia, one of a number of large cities across the nation still dealing with a backlog of cases caused by the pandemic.
Ultimately, according to Matzus, special rules that privilege medical malpractice defendants are repugnant to equality under the law.
“The Pennsylvania Rules of Civil Procedure should create ‘fairness of process’ and be ‘agnostic to outcome.’ Special venue rules for malpractice defendants have been corrosive to this principle. They were adopted because of perceived inequalities in outcomes for one class of defendants and their continued existence is antithetical to this fairness of process.”
If the massive healthcare company, University of Pittsburgh Medical Center (UPMC), runs the game in much of Pennsylvania, now they have a different liability exposure profile. Simply put, if a physician messes up in small-town Bedford, now they might get haled into court in Pittsburgh, where the plaintiff could fare much better. From the potential plaintiff’s perspective, there have been many downsides to these regional health giants, and now one of those obstacles has been removed in Pennsylvania.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief legal analyst for Esquire Digital. He has taught entrepreneurship at McGill University and the University of Pennsylvania and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, Crunchbase, Variety, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.