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Pennsylvania Supreme Court Chief Justice Ralph J. Cappy has announced new statewide rules for pretrial procedure in medical malpractice cases that would allow health care defendants to ask for a court-ordered mediation or settlement conference and would permit both parties to move the pretrial process along by requesting that expert reports be submitted on a deadline. The rules became effective when published Monday. They will not interfere with case management rules that the Philadelphia Common Pleas Court already has in place, court officials said, but they do put to paper a health care defendant’s right to request a court-ordered mediation or settlement conference. Under Rule No. 1042.21, a health care provider may file a motion to request the mediation or conference very early — before the parties exchange expert reports. The court may grant the motion even if the other parties have not agreed to it — as long as the moving defendant certifies that there is a “realistic possibility” of settlement. In the motion, the moving defendant, who pays for the mediation, is to describe what type of mediation is sought. The court must consider any objections from other parties before entering an order, the rule states. Judges in Philadelphia and Allegheny counties said that something like this procedure is already available in most courts in Pennsylvania. “We’ve never had something that said this, but I’m certain that if a hospital identified a case and said, We’d like to do something early, they’ve known they can always get in touch with an administrative judge,” said Allegheny Common Pleas Judge R. Stanton Wettick Jr., who was involved in the development of the new rules. This scenario hasn’t happened often, Wettick noted. The rule is intended to formally give hospitals and doctors a mechanism for getting a judge involved when they identify cases they believe could be resolved early, Wettick explained. “In order to avoid the expense of litigation and the hardening of positions, they can contact the court and ask that they hold a pretrial [settlement] conference or court-ordered mediation,” Wettick said. Recent developments have led court watchers to believe that doctors and hospitals may be opening up to mediation or other ways of resolving cases early. This month, Drexel University College of Medicine began a mediation program, and it has been reported that Abington Memorial Hospital has also decided to mediate some medical malpractice cases. “Mediation seems to be the way of the future,” said Allan Gordon of Kolsby Gordon Robin Shore & Bezar, a plaintiffs attorney who is co-mediating a case with a defense attorney next month as part of the Drexel program. The new pretrial rules were a response to recommendations by Gov. Edward G. Rendell’s ad hoc medical malpractice task force that the state courts encourage mediation, Wettick said. They also attempt to address complaints from doctors who say malpractice cases move too slowly through the court system, Wettick said. Cappy created a subcommittee last year to formulate recommendations for the Supreme Court. The committee, headed by Wettick, developed the rules for pretrial procedure. Aside from the mechanism for requesting mediation and settlement conferences, the rules give parties a tool for compelling expert reports from the other side and asking the court to order a scheduling conference in a case when there’s been no movement a year after the first answer was filed. Wettick explained that the case management rules were not meant to interfere with courts that are already actively managing these cases. Philadelphia Common Pleas Judge William J. Manfredi, who supervises the civil division, said yesterday that the Drexel program signals parties’ willingness to participate in mediation. “To the extent that mediations are being scheduled, we’re cooperating with that,” Manfredi said. In cases where mediation has been agreed to, the civil division has said it can move back some previously scheduled court meetings, such as settlement conferences before a judge pro tempore, in order to give mediation a shot, Manfredi said. But the court will not move any court dates that would extend the life of a case — that is, a trial date will not be continued, he said. Gordon doesn’t expect many plaintiffs to object to a court-ordered mediation, he said. “Mediation only works if both parties want to mediate and resolve a case,” Gordon said. “I believe if defendants pick a case they’d like to mediate, I think most plaintiffs will say, ‘Fine’.” But another plaintiffs attorney, Jim Mundy of Raynes McCarty Binder Ross & Mundy, said that — despite being a noble cause — there are problems inherent in medical malpractice mediation. For example, a plaintiffs lawyer lays out the case against a doctor in mediation and at the end could learn the doctor refused to ever consent to a settlement because he didn’t want it on his record, Mundy said. “These rules are designed in the hope that cases will go to mediation early,” said Mundy, who sat on the medical malpractice subcommittee Cappy appointed. “I don’t think that’s going to be possible in most cases. You’re trying to get to ‘yes’ at a stage where it’s still disputed what happened and what should have happened.” As he’s argued with proponents of mediation, he said, “You can lead a horse to water but you can’t make him drink.”

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