In the wake of the state Supreme Court rescinding a civil procedural rule under which trial courts could reduce noneconomic damages in medical malpractice cases, attorneys said the move would not change this area of law very much because trial judges are reluctant to reduce damages awarded by juries and because so-called runaway jury verdicts are rare.

The court retracted Pennsylvania Civil Procedural Rule 1042.72 without commentary. The court also retracted the rule without circulating it for public comment, citing Pennsylvania Rule of Judicial Administration 103(a)(3).

Under the judicial administration rule, the Supreme Court can exercise its discretion to make rules if "such action is otherwise required in the interests of justice or efficient administration," where exigent circumstances require adoption of the proposal, or where the proposed amendment is a perfunctory one. The court did not specify under which of those grounds it was revoking the rule.

Defendants seeking remittiturs for noneconomic losses had the burden to show that the awards deviated "substantially from what could be reasonable compensation."

Defense attorney John J. Hare, chair of appellate advocacy and post-trial practice for Marshall Dennehey Warner Coleman & Goggin, said that defense lawyers typically sought to reduce plaintiffs awards under Rule 1042.72 but "they just didn’t get much traction."

While the standard under the rule was lower than the common law standard of exorbitance under which judges can remit awards because the awards shocked their conscience, Hare said that, in practice, Rule 1042.72 was underutilized by the courts. "Trial courts always hesitate to negate what a jury has done," he said.

There also is a remittitur rule under MCARE, which allows for the reduction of verdicts if the verdicts would hurt the availability of health care to the community, Hare said, but that rule also isn’t exercised much either.

Plaintiffs attorney Paul A. Lauricella of McLaughlin & Lauricella said Rule 1042.72 was implemented to address the "feared runaway verdict."

But the rule was "duplicative of the court’s inherent power to remit an excessive award," Lauricella said.

But after other rule changes in which cases must be filed in the venue in which the causes of action arose and in which attorneys must file certificates of merit attesting that they had medical professionals review their malpractice cases, the only plaintiffs jury verdicts at this point are ones in which plaintiffs were catastrophically injured, Lauricella said.

"This is another one of those solutions in search of a problem. To the extent that there were any runway verdicts or excessive awards, the primary rule that has had the most effect on the ‘litigation crisis or malpractice crisis’ was the venue rule. … There just haven’t been that many enormous frivolous awards that would be subject to this rule and provision," Lauricella said.

Hare said that the venue rule has resulted in a net reduction of medical malpractice cases because a lot of plaintiffs lawyers concluded that, because of the costs of prosecuting medical malpractice claims, if they couldn’t file in Philadelphia and be more likely to have the chance of getting big verdicts, then it wasn’t worth it to file the cases at all.

Lauricella said that medical malpractice cases used to be able to be prosecuted for $10,000 or $20,000, but his firm has spent $200,000 to prosecute just one medical malpractice case.

Rule 1042.72 could have undermined plaintiffs lawyers’ ability to take tougher negotiation positions because they would know that could face post-trial review by trial judges, Lauricella said, but the rule has not been exercised very often.

But Lauricella said he would prefer a rule that would allow judges to remit noneconomic damages over a hard-and-fast rule capping damages at a certain amount, Lauricella said.

William H. Lamb, chairman of Lamb McErlane and who was part of a committee appointed by the Supreme Court to address medical malpractice reform, said that Rule 1042.72 was developed to prevent "in effect runaway verdicts," but it also was intentionally written with a sunset provision.

"The whole purpose of the rules was not preventing people from bringing serious actions," Lamb said. "It was to prevent, among other things, what we call forum shopping where you look around for where you get the most favorable verdict or response and that’s where you bring your action. … The rules cumulatively propounded by the Supreme Court have certainly had a dramatic impact on the whole med mal situation — to the better."

When Rule 1042.72 was challenged in the court, it was ultimately upheld.

The Supreme Court denied allocatur in 2007 of a Superior Court opinion upholding an Allegheny County Court of Common Pleas’ decision to remit a jury award for noneconomic damages in Vogelsberger v. Magee-Womens Hospital.

Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.