The Pennsylvania State Capitol Building, in downtown Harrisburg. Photo: Shutterstock

Pennsylvania's Legislative Budget and Finance Committee released its much-anticipated report on the potential impacts of proposed changes to the medical malpractice venue rules, and both supporters and challengers are claiming the findings bolster their positions.

The committee—composed of six Pennsylvania senators and six members of the state House of Representatives—voted to make the 200-page report public Monday, after committee staff worked on the document for nearly a year. The findings cover a range of topics, including the impacts of decades-old venue changes on professional liability insurance rates and medical malpractice filings.

Although the report was commissioned to look into the possible effects of proposed changes to medical malpractice venue rules that have been in place for nearly two decades, the report did not provide any recommendations about whether the current venue rules should be scrapped, but instead simply outlined the committee's findings.

The proposed changes seek to allow injured plaintiffs to sue in any venue where their health care provider regularly does business, essentially tossing venue rules put in place in 2002 under the Medical Care Availability and Reduction of Error (MCARE) Act. As the rules stand, plaintiffs in medical malpractice cases are limited to suing in the venue where their injuries occurred.

The Pennsylvania Supreme Court's Civil Rules Committee had first proposed the rule change in late 2018, but, following an outcry from the defense bar, the high court halted the process so the legislature could perform a study on what impacts the proposal may have.

The changes have found significant support from the plaintiffs bar, who argue that the current rules create a special and unwarranted exception for medical malpractice defendants and have diminished access to the courthouse for many victims. The defense bar, on the other hand, has pushed back, saying the changes would lead to instability in the professional liability insurance markets and would cause doctors to leave the state.

In several instances in the report the authors determined that they could not come to any conclusions about what has affected insurance rates and filings over the past few decades, citing in some instances incomplete data and variables outside the scope of the review. But both sides still claimed the report supported their efforts for and against the bill.

In a press release issued Monday afternoon, Pennsylvania Coalition for Civil justice Reform executive director Curt Schroder said the report showed there is no reason to change the rules. Schroder specifically touted findings indicating that medical liability claims and payouts had fallen, insurance rates had been declining since 2007 and claims have shifted from Philadelphia and Allegheny counties, which, he said, was the intended outcome of the 2002 changes.

"The medical liability climate has been stable since the venue rule went into effect in the early 2000s, and the report gave no compelling argument to disrupt the current rule," Schroder said. "Changing the venue rule to once again allow venue shopping risks instability in the market and puts the positive changes noted in the report at risk."

A joint statement from PCCJR, the Pennsylvania Medical Society, the Hospital and Healthsystem Association of Pennsylvania and the Pennsylvania Health Care Association further said they were concerned that changing venue rules now would harm the availability of health care services for Pennsylvanians.

"Patients involved in negligence cases deserve compensation," the statement said. "The current venue rule provides open access to the court system and competent juries, no matter if they are from Potter County or Philadelphia."

Defense attorney Gary Samms of Obermayer Rebmann Maxwell & Hippel said the most important part of the report was the more than 150 pages of exhibits that underpin the report's findings.

"The exhibits clearly show that jury verdicts were different, the price of insurance was significantly higher for physicians and the number of filings for medical malpractice cases were all greater before the switch," he said, specifically noting that Philadelphia saw a nearly 68% decrease in filings after the prior rule changes while at the same time the collar counties each saw increases—especially Montgomery County, where filings rose by 397%. "It's overwhelmingly clear that the venue affects the likelihood of a verdict and the amount of a verdict."

Plaintiffs' Side

Fanelli, Evans & Patel attorney Sud Patel, who is president of the Pennsylvania Association for Justice, however, said in a press release that the report repeatedly stated that it could not come to any conclusions about the effect of the prior rule changes on the availability and costs of medical professional liability insurance, or the number of physicians statewide. Instead, he said the report clearly shows that only 50% of Pennsylvanians suffering medical malpractice have been able to sue in court.

"Contrary to what insurers and hospital groups would have you believe, this decrease in access to justice is not cause for celebration, especially when juxtaposed against the terrifying fact that medical errors are occurring at an alarmingly high and steadily increasing rate. Medical malpractice is the third leading cause of death in the United States," Patel said. "We did not need another study telling us what we already knew, we needed action that improved public safety."

McLaughlin & Lauricella attorney Slade McLaughlin, who represents plaintiffs, said the report undercut some of the opponents' claims about the problems that may come to pass if the rules are changed, specifically pointing to the finding that a large portion of medical school graduates are already leaving the state.

"Even with all these restrictive rules doctors are leaving," he said. "I don't think that can be relied on anymore as a factor."

The rules, he said, should be changed so that medical defendants are treated like all other defendants in the state.

"I don't know that [the 2002 rule changes have] done a whole lot of good … except to put these medical defendants in a situation where they're getting a benefit that nobody else is getting," he said.

With the report now public, the Budget and Finance Committee's work is largely complete, although that does not mean the issue is now completely out of the legislature's hands.

State Sen. Lisa Baker, R-Luzerne, who is the majority chairwoman of the Pennsylvania Senate Judiciary Committee and had initially proposed the resolution directing the Legislative Budget and Finance Committee to analyze the potential impacts of the rule change, suggested that a follow-up public hearing be held for stakeholders to discuss the findings.

The Budget and Finance Committee's executive director, Patricia Berger, said committee staff may be asked to testify about the report before any legislative committee that wants to take up the issue. Given that the rule change proposal started with the Supreme Court's Civil Rules Committee, she said the Senate will likely formally transfer the report to the Supreme Court at some point as well.

However, she noted that the initial venue changes were part of a joint judicial and legislative effort, and so it's possible that process could unfold again.