Paul Muschick: Finally, a clue about what prompted proposal to change PA’s medical malpractice lawsuits

March 05-- Mar. 5--The secret's finally out, in a very broad sense, about what rekindled a nearly two-decades old debate over where medical malpractice lawsuits should be tried.

Someone wrote to the state Supreme Court asking for the change, a justice revealed recently. So it seems the proposal came from the outside, not from within the court or its rules committee.

"Somebody wrote a letter to the court, and the chief justice sent it to the committee and said, 'see what you think,'" Justice Max Baer told state senators at a Feb. 26 budget hearing. "And that letter was suggesting that after 16 years, the med-mal crisis had abated and we should go back to the venue rule that we had for the first 275 years of the commonwealth."

Baer did not identify who wrote the letter, or indicate whether he knew who wrote it. Senators should have asked him.

He may not have said much more if questioned. But probing would have been appropriate, considering the concerns that lawmakers, mostly Republicans, have raised. It's not often that you get to publicly question a Supreme Court justice. Those opportunities must be used wisely.

Baer and another justice, Sallie Updyke Mundy, didn't offer a lot of new information. But their comments at the budget hearing are noteworthy because it is the first time the justices have publicly spoken about the issue, at least that I'm aware of.

Whether to change the medical malpractice lawsuit venue rule could be one of the most significant decisions made in Harrisburg over the next year.

In December, the Supreme Court's Civil Procedural Rules Committee said it planned to suggest the court end a requirement that malpractice lawsuits be filed in the county where the alleged negligence occurred.

Prior to that rule being implemented in 2003, lawsuits could be filed anywhere the physician or practice did business. The venue restriction was part of a broader reform to address rising malpractice insurance rates.

In a notice requesting public comments, the committee said the change "is intended to restore fairness." It noted there had been a significant reduction in malpractice lawsuits, with "far fewer" victims of medical negligence being compensated.

The Pennsylvania Association for Justice, the state organization for trial lawyers, supports the change. It says the current system is unfair because it treats the medical industry differently than others, and shields them as a result.

Since I first wrote about this last month, I've heard from two Lehigh Valley residents who feel the current system is stacked against victims.

They claim relatives suffered from malpractice. They said they struggled to find attorneys who would sue in Lehigh and Northampton counties because they were told it would be an uphill fight in the local courts, and they would be better off if they could pursue their cases elsewhere.

On the other side of the argument are health care associations and the Pennsylvania Coalition for Civil Justice Reform, which advocates for fairness in the courts.

They say changing the rule would cause insurance premiums to rise again, which could increase the cost of health care and drive physicians out of the state. They contend that lifting the venue restriction would result in more cases being tried in Philadelphia, where juries have a history of favoring plaintiffs and awarding large damages.

Large awards, of course, would benefit trial lawyers, too. There's been speculation, including from me, that trial lawyers are behind the proposal to change the rule. The fact that I've heard from local residents claiming to have been stymied by the system indicates there could be pressure from other sources, too.

Prior to Baer's comments -- made to the Senate Appropriations Committee during the judiciary's annual budget hearing -- court officials hadn't said where the suggestion came from. They said only that proposals can come from many sources, including the court or its committees, the public, studies and recommendations or new legislation.

Sen. Lisa Baker, R-Luzerne, asked Baer and Mundy if members of the court's committees must disclose conflicts of interest with potential rules changes and "step away from participation if it directly affects them."

She didn't say it, but her question addressed the fact that the Civil Procedural Rules Committee includes five attorneys who work at firms that file medical malpractice cases, according to Forbes.com.

Mundy told Baker her question was a "kind of a misnomer."

"These are procedural rules committees, so hopefully, every member of the committee would have some interest in those rules because they're all going to practice under those rules across the state," she said.

Baer said after the committee reviews the public comments, it could continue with its proposal to recommend that the justices change the system, or it could squash the idea. He said the committee is "very splintered," and it could send the justices two reports, one taking one position and another dissenting.

Sen. Gene Yaw, an attorney who has represented plaintiffs and defendants, told the justices the proposed change is more than a procedural matter.

"It's a serious economic health care issue," said Yaw, R-Lycoming.

He asked the justices to consider the impact that lawsuit venue has on the health system and the cost of the health system in Pennsylvania.

"We are all Pennsylvanians," Baer responded. "I can tell you nobody wants to ruin the health care system for Pennsylvanians."

He said the court was happy to temporarily halt the process, at the Senate's request, until the Legislative Budget and Finance Committee completes a study on how the location of malpractice lawsuits impacts access to medical care, costs of liability insurance, determination of negligence and compensation for it. That study is due by Jan. 1.

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