Must Med-Mal Cases Be Tried Only Where the Injury Occurred?

Wayne J. Guglielmo, MA

Disclosures

March 18, 2019

In This Article

Should Cases Be Decided Where the Alleged Injury Occurred?

Trial attorneys sometimes try to change the venue of a malpractice trial in an effort to get a more favorable jury for their client. Years ago, the Pennsylvania Supreme Court issued a rule that required plaintiffs to file their medical malpractice suit in the county where the alleged medical error occurred—and not where judicial history indicated a jury might view their claim more favorably. The decision, in effect, put an end to a practice popularly known in legal circles as "venue shopping."

However, responding to an urgent request from state Senate leaders, the Pennsylvania Supreme Court has agreed to set aside for now its proposed change to that rule, which was aimed at cutting down on the number of medical malpractice suits, according to a story last month in The Morning Call, among other news outlets.[1]

Together with Democratic lawmakers, the trial bar has asked this current court to change the long-standing rule for two major reasons. First, they say, the venue restriction severely hampers plaintiffs' ability to find impartial juries in some rural counties, where jurors presumably tend to favor defendants over plaintiffs.

And second, the restriction unfairly singles out med-mal claimants, who, unlike plaintiffs filing negligence claims in other industries, face curbs on venue choice.

Word that the high court was contemplating a change to the venue rule prompted Senate Republicans to pass a resolution calling for a delay. On February 14, justices agreed to postpone their decision until year's end, pending the completion of a legislative study.

On the very same day, the House Republican Caucus hosted a public hearing where hospital officials, doctor groups, and others weighed in on the court's proposed change.

If the court went ahead and rescinded its rule against venue shopping, argued both physician and hospital representatives, regional healthcare partnerships with Philadelphia-based groups could be jeopardized. Why? Because doctors and hospitals would be reluctant to partner with facilities located in a city where juries tend to favor plaintiffs over defendants, rewarding the former with sizable judgments.

But independent experts consulted by The Morning Call voiced their skepticism.

"I don't see that logic," said Hanming Fang, a professor of economics at the University of Pennsylvania, who studies insurance and healthcare markets.

In principle, he explained, a change in the venue rule wouldn't affect such partnerships one way or another, since, under the high court's proposed revision, attorneys filing a medical malpractice suit could choose the City of Brotherly Love as their venue whether or not the facility where the injury occurred had an affiliation with a Philadelphia-based health system.

Still, the current rule prohibiting venue shopping—along with other reforms to the state tort system passed nearly two decades ago—seems to have had its intended effect: to drive down the number of suits and high-end judgments. Private insurance companies, for one, are reportedly collecting more money in malpractice premiums than they're paying out in claims. The result is that surpluses in the state-run med-mal compensation fund have risen to record levels.

Whether these surpluses have come at the expense of injured patients getting a fair shake in the Pennsylvania courts is something that, at the end of the year, justices will need to weigh carefully before deciding whether the venue rule should stand as it is or be altered.

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