Pa. malpractice reforms could set the pace for other states. (Health Law).

IN THIS ARTICLE...

In Pennsylvania, the state Supreme Court quietly enacted common-sense changes that may help curb baseless litigation and may serve as a model for other states facing a similar crisis.

Tort reform continues to spark furious debate at the national level.

Look no further than President Bush's visit to Pennsylvania in January, when he called for a $250,000 cap on non-economic damages in medical malpractice lawsuits. The predictable response by plaintiffs' lawyers was that such a cap would only penalize patients.

While debate continues, the U.S. House of Representatives is considering legislation to enact such a cap.

Shortly after the President's visit, however, the Supreme Court of Pennsylvania took action that promises some relief to doctors, hospitals and other providers reeling from the state's malpractice insurance crisis--and it may be a model for other states to follow.

With little fanfare, and without following its usual process for announcing new rules and allowing a period for comment, the court on January 27, 2003 amended the rules governing medical liability actions. Under the new rules, a medical malpractice lawsuit must be filed in the county where the cause of action occurred.

The court also implemented new rules requiring the filing of a certificate of merit with any professional liability lawsuit brought against a licensed professional (not just doctors). The court cited only "the interest of justice and efficient administration" as justification for immediate adoption of the rules.

Stopping venue shopping

The court's action follows the October 2002 adoption by the state legislature of a bill that requires plaintiffs to file medical malpractice lawsuits only in the county in which the cause of action occurred. The rules go somewhat beyond the legislation, however, by imposing the same venue burden on lawsuits involving multiple defendants or asserting multiple claims, and by imposing the certificate of merit requirement.

Both the legislation and the rule changes are aimed squarely at ending venue shopping, the practice of plaintiffs filing suit in jurisdictions that historically have produced large damage awards in medical malpractice lawsuits, regardless of where the alleged negligence actually occurred.

In Pennsylvania, which in 2000 had the second-highest amount of malpractice judgments and settlements in the nation, Philadelphia is the plaintiff's jurisdiction of choice. Philadelphia and its surrounding suburban counties account: for 13 percent of the state's population, but almost 90 percent of the state's total jury awards, according to the Insurance Information Institute.

From 1994-2001, the median jury award in Philadelphia for a medical malpractice case was $972,909, while in the rest of the state the median was $410,000. Doctors, insurers and many observers blame soaring malpractice damages awards for contributing to the state's malpractice insurance crisis that forced hundreds of doctors to leave the state and others to abandon "risky" procedures and hospitals to curtail services, according to the Pennsylvania Medical Society.

Under the old venue rules, plaintiffs enjoyed greater. flexibility in choosing where to sue. If suing a partnership, association or corporation, the plaintiff could file the lawsuit in any county where the organization regularly conducted business, or where it had its principal office or where some or all of the medical treatment took place.

If suing multiple defendants, the plaintiff could choose which defendant to use in support of venue in a particular county. If a lawsuit asserted other claims in addition to medical malpractice, the old rules allowed a plaintiff to bring all claims in any county relevant to any of the claims.

Under the new rules, any medical malpractice lawsuit against a health care provider must be filed in the county where the cause of action occurred, regardless of the number of defendants or other claims asserted.

In the case of a malpractice lawsuit against multiple health care provider defendants, where the cause of action occurred in different counties for different defendants, the claim must be filed in the county where the cause of action occurred for at least one of the defendants.

The new rules should help end the all-too-common practice of plaintiffs suing defendants with peripheral involvement in a medical liability action merely because one defendant is in Philadelphia or some other "jackpot" county.

Similarly, the new rules prevent plaintiffs from asserting multiple claims in addition to medical malpractice, merely to attach a defendant that would allow the lawsuit to be brought in a preferred jurisdiction.

The new venue rules also help defendants understand just where in Pennsylvania they may be subject to suit. This is of particular importance to health care systems and other large providers in multiple jurisdictions. For example, under the old venue rules, a plaintiff could sue a corporation in up to four Pennsylvania counties--assuming that the corporation's principal place of business or registered office was in one county, the corporation regularly conducted business in another, a transaction or occurrence leading to the claim arose in a third county and the cause of action arose in a fourth.

The new rules protect such potential defendants by providing medical malpractice plaintiffs with only one place to lay venue--the county where the alleged malpractice occurred.

Certificate of merit and expert testimony 

When bringing an action for medical professional liability in Pennsylvania, a plaintiff's attorney must now file a separate certificate of merit for each licensed professional against whom a claim is alleged. Similarly, a defendant who files a counterclaim, or sues another health care provider as an additional defendant based on different acts of alleged negligence, also must file such a certificate.

Further, a plaintiff bringing a medical malpractice claim against a health care provider under the theory of vicarious liability (such as a claim against a doctor's employer) must file a certificate of merit as to each of the other licensed professionals, whether or not they are named defendants in the action.

The new rules require a plaintiff to obtain a written statement by an appropriate licensed professional certifying "that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work fell outside acceptable standards and that such conduct was a cause in bringing about the harm."

Although the individual providing such a statement is not required to testify at trial, that individual must be competent to do so. As such, in a medical malpractice action brought in Pennsylvania, the certifying professional must comply with the qualifications for expert testimony established in state law.

If expert testimony is not necessary for a plaintiff to bring a medical malpractice claim, the plaintiffs attorney must indicate it in the certificate of merit. Accordingly, the new rule prohibits such a plaintiff from later offering expert testimony on the applicable standard of care and causation.

The rules prohibit a plaintiff from seeking discovery (interrogatories, document request and depositions) before filing the certificate of merit, although a plaintiff may file a motion requesting such discovery to enable the plaintiffs expert to provide the appropriate statement. A defendant seeking to avoid such discovery may file a motion for a protective order.

As a general rule, however, the court will not allow a defendant to take discovery from the plaintiffs certifying expert, barring exceptional circumstances that make obtaining facts and opinions on the particular subject impracticable.

Reactions to the rules

Recent commentary on the new certificate of merit rules is mixed. Some attorneys argue that the new requirements will have minimal effect, as most attorneys consult experts before filing a complaint. Consequently, the certificate of merit rules may only affect attorneys who do not litigate a large number of medical malpractice cases.

Many critics also argue that it is too difficult to measure the efficacy of the certificate of merit alone because it follows a package of other health care reforms implemented by the state legislature.

Still, the certificate of merit, a medical malpractice plaintiffs pass into court, may force attorneys and clients to confront the realities of their case at an earlier stage. Like the amended venue rules, the new certificate of merit rules may encourage medical malpractice plaintiffs to evaluate marginal claims before filing suit.

By requiring plaintiffs to find an expert to certify that a case has merit, the rules also provide yet another layer of protection for defendants who in the past relied on preliminary objections and summary judgment to dispose of baseless lawsuits.

Criticism of the new certificate of merit rules will likely center around discovery. Although defendants undoubtedly approve of the goal of deterring marginal lawsuits, they will probably question the fairness of allowing an expert statement that as a general rule is not subject to discovery to serve as the basis for a plaintiffs medical malpractice action.

Simply stated, to get into court, a medical malpractice plaintiff needs any competent expert to provide opinion. However, the rules allow a plaintiff to call a different expert at trial.

The Pennsylvania Rules of Civil Procedure generally prohibit a party from taking discovery from an expert who will not testify at trial. This means a defendant will probably be prohibited from taking discovery from the certifying expert whose statement enabled the assertion of the plaintiffs claim.

Some plaintiffs may consult an expert solely to fulfill the certificate requirement rather than to obtain an objective evaluation of the malpractice claim. This twist of logic may present an unanticipated consequence for Pennsylvania courts and legislators if the goal of the new rules is to discourage unsubstantiated medical malpractice claims.

The rules also allow courts to grant a plaintiff an unlimited number of extensions for filing the certificate of merit. Defendants will likely argue that this provision allows medical malpractice plaintiffs to buy time while 'shopping' for an expert who will substantiate the plaintiffs claim.

All of the new rules seek to confront the growing tension between plaintiffs, physicians and malpractice insurers in Pennsylvania. Although the amended venue rules will likely provide a sturdy challenge for plaintiffs using venue to seek out sympathetic juries, the new certificate of merit rules may not prove as effective. Only after plaintiffs and defendants have tested the rules can their utility be measured.

As other states grope for a solution to similar crises, Pennsylvania's experience may be instructive. At the federal level and in states across the nation, tort reform efforts are largely focused on capping non-economic damages, following the model set by California, which has had a $250,000 cap on non-economic damages since 1975.

In 2002, Nevada, Florida and Mississippi passed some limits on non-economic damages and several other states are considering similar legislation. But as evidenced by the debate at the federal level and in many states, such legislation faces fierce opposition, and in the case of some states (such as Pennsylvania), may even require a constitutional amendment.

Common-sense changes in civil procedure, such as the amended venue rules and new certificate of merit requirement in Pennsylvania, may offer some relief to the malpractice insurance crisis without requiring the political battle needed to enact a cap on damages.

Andrew R. Rogoff, JD is a partner in the Philadelphia office of the law firm of Pepper Hamilton LLP. Much of the practice is devoted to defending against claims of medical malpractice and pharmaceutical products liability. He can he reached by telephone at (215) 9814881 or by e-mail at [e-mail].

Imiebihoro T. Ahonkhai, JD is an associate in Pepper Hamilton LLP and can be reached by phone at [phone] or by e-mail at [e-mail].