By Andrew R. Rogoff, Esq. & Imiebihoro T. Ahonkhai, Esq.
As most Pennsylvania health care providers likely know, the U.S. House of Representatives passed a medical malpractice liability reform bill on March 12 that included what many seem to view as the Holy Grail in tort reform efforts: a cap on non-economic damages. However, chances for passage in the Senate are uncertain.
Unless and until federal action occurs, or the state government takes further action to curb the ongoing malpractice insurance crisis, Pennsylvania providers will have to make do with the most recent state reform efforts: the state law and subsequent court rules aimed at ending “venue-shopping” by plaintiffs and requiring plaintiffs to file a “certificate of merit” with any professional liability lawsuit brought against a licensed professional.
How much will these changes help providers in controlling spiraling insurance costs? Only time will tell for sure. But the venue-shopping reform, and to a lesser extent the certificate of merit requirement, are common-sense changes that will have an effect on common litigation practices that many blame for contributing to the state’s insurance crisis.
Acting on the heels of the state legislature’s passage of SB 138 last October, the state Supreme Court on January 27, 2003, amended the procedural rules governing medical liability actions. Under the amended venue rules, a medical malpractice lawsuit must be filed in the county where the cause of action arose, which is almost always where the medical treatment 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).
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 awards in medical malpractice lawsuits, regardless of where the alleged negligence actually occurred. Providers know the story well: in Pennsylvania, the plaintiff’s jurisdiction of choice is Philadelphia. 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 to 2001, the median jury award in Philadelphia for a medical malpractice case was $972,909, while in the rest of the state, including Pittsburgh, the median was $410,000.
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 treatment took place. If suing multiple defendants, the plaintiff could choose which defendant to use in support of laying 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 arose, 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 arose in different counties for different defendants, the claim must be filed in the county where the alleged malpractice occurred by 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 county.
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 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). Now, in most cases, plaintiffs are limited to one county.
Certificate of Merit
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 (based solely on the doctor’s negligence) “must file a certificate of merit as to each of the other licensed professionals (i.e., the negligent doctor), 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 plaintiff’s attorney must so indicate 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 requests and depositions) before filing the certificate of merit, although a plaintiff may file a motion requesting such discovery that will enable the plaintiff’s 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 likely will not allow a defendant to take discovery from the plaintiff’s certifying expert, barring exceptional circumstances that make obtaining facts and opinions on the particular subject impracticable.
How Will the Rules Help?
Some 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 litigate few 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 plaintiff’s pass into court, may force attorneys and clients to confront the realities of their case at an earlier stage. By requiring plaintiffs to find an expert to certify that a case has merit, the rules provide yet another layer of protection for defendants who in the past relied on preliminary objections and summary judgment to dispose of baseless lawsuits.
Criticisms of the new certificate of merit rules will likely center on discovery. Although defendants undoubtedly approve of the goal of deterring marginal lawsuits, they will likely 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 plaintiff’s 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 that a defendant will probably be prohibited from taking discovery from the certifying expert whose statement enabled the 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 plaintiff’s claim.
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.
Andrew R. Rogoff, Esq., is a partner and Imiebohoro T. Ahonkhai, Esq., is an associate in the Philadelphia office of the law firm of Pepper Hamilton LLP.