The Civil Procedural Rules Committee's proposed rescission of the venue rule in medical malpractice cases has sparked spirited debate in legislative, medical, legal and underwriting spheres. The committee's process is confidential. The publicly available information is limited. But, no known data supports the committee's conclusion that the rule “no longer appears warranted,” see 48 Pa. Bulletin 7744 (Dec. 22, 2018). Health care providers, insurers, members of the defense bar and related organizations, therefore, strongly support the Supreme Court's recent decision to defer consideration of any amendment to the rule pending the report of the Legislative Budget and Finance Committee on the potential effects of the proposed rule change.

Reform Measures Addressed the Medical Malpractice Crisis

The well-documented insurance crisis of the early 2000s was a health care crisis, see Bovbjerg et al., “Understanding Pennsylvania's Medical Malpractice Crisis: Facts about Liability Insurance, the Legal System, and Health Care in Pennsylvania,” The Project on Medical Liability in Pennsylvania funded by The Pew Charitable Trusts (2003) (the Pew Study). It is well-recognized that skyrocketing premiums caused a significant decline in the growth rate of the numbers of physicians from 1997 to 2000. The 2003 Pew Study expressly concluded that the largest cost component affecting the affordability of coverage was the rising cost of legal claims.

In response to the health care crisis, the Pennsylvania legislature and the Pennsylvania Supreme Court adopted reform measures to restore balance to the medical liability insurance market and ensure continued access to high quality health care services. The centerpiece of the effort, the Medical Care Availability and Reduction of Error (MCARE) Act, contains multiple provisions designed to rein in costs. In conjunction with the MCARE Act, the Supreme Court promulgated rules to further these objectives: the Certificate of Merit Rule, Pa. R. Civ. P. 1042.3, which requires a qualified physician to attest to the legitimacy of a potential claim before a plaintiff may bring suit and the medical malpractice venue rule, Pa. R. Civ. P. 1006(a.1), and its related counterparts, which locate venue in the county where the care at issue was rendered.

The professional liability venue rule was the product of deliberations by all three branches of government through the Interbranch Commission on venue. The court adopted Rule 1006(a.1) to redress the undue expansion of venue, due to the consolidation of healthcare systems and prevent forum shopping, in medical malpractice actions, as in Searles v. Estrada, 856 A.2d 85, 92 (Pa. Super. 2004).

The Reforms Are Working

The available data demonstrates that the reform measures are working. In the 16 years since the passage of MCARE and the amendment of the venue rules, statistics maintained by the Administrative Office of Pennsylvania Courts (AOPC) indicate that the total number of medical malpractice lawsuits has declined statewide, see AOPC-Case Load Statistics. The average number of medical malpractice cases filed statewide since 2002 has dropped approximately 50 percent. The overall reduction in case filings demonstrates that the Certificate of Merit requirement has likely had the intended effect of a reduction in the filing of frivolous lawsuits.  Wilson v. El-Daief, 964 A.2d 354, 370 (Pa. 2009).  As for the specific intended effect of the venue rule, case filings in Philadelphia County decreased while filings in other counties, especially neighboring Montgomery County, increased.