In 2002, the Medical Care Availability and Reduction of Error Act (the MCARE Act), 40 P.S. § 1303.501, et seq. reformed the law on medical malpractice in Pennsylvania. One result of the MCARE Act was a change to Pennsylvania’s venue rules for medical malpractice actions, which was implemented in the Pennsylvania Rules of Civil Procedure.
Rule 1006(a.1) of the Pennsylvania Rules of Civil Procedure, sometimes called the venue carve-out rule, provided that “a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose.” Pa. R.C.P. 1006(a.1) (emphasis added). Rule 1006(a.1) was intended, in part, to prevent forum shopping and reduce frivolous claims.
The MCARE Act’s venue carve-out rule was successful. According to the Pennsylvania Unified Judicial System’s statistics, prior to the MCARE Act’s passage, more than 2,700 medical malpractice cases were filed per year in Pennsylvania from 2000 to 2002. After the MCARE Act’s passage, including the venue carve-out rule, the number of medical malpractice cases filed in Pennsylvania dropped to about 1,500 per year from 2006 to 2020. Despite this, the venue carve-out rule proved controversial and was continually subjected to challenge and reconsideration. Plaintiffs felt constrained in their options on where to file their claims and defendants in non-medical malpractice cases were not afforded the same home venue protection.
Recently, on August 25, 2022, the Pennsylvania Supreme Court determined that the venue carve-out rule should be done away with. As a result, beginning on January 1, 2023, medical malpractice suits may be filed in any county where a defendant could be served, any county in which the cause of action arose or where any transaction or occurrence out of which the cause of action arose took place. This is the same venue rule applicable to all other defendants in Pennsylvania. See Pa. R.C.P. Rule 1006(a).
Despite its egalitarian nature, this change could lead to an increase in precisely the kind of venue shopping and follow-on frivolous claims against entities that support the preferred venue that the MCARE Act’s venue carve-out rule was designed to – and for a time did – reduce. Specifically, plaintiffs will likely again choose to file many medical malpractice lawsuits in counties which are perceived to be plaintiff friendly such as Philadelphia County and seek to join entities based in, or doing business in, those venues regardless of where the treatment was provided. Insurance costs for medical providers will also likely increase as the number of claims and the expense of litigation increase in 2023 and beyond. Increased insurance costs can lead to increases in healthcare costs further down the road.