New Venue Rule Covers Cases Filed From Jan 1, 2002, Onward

Pennsylvania - New Jersey - New York - Nationwide

By Jennifer Batchelor
The Legal Intelligencer

The Pennsylvania Supreme Court has stemmed the tide of venue transfer requests that were flooding the desks of Philadelphia judges pursuant to January's procedural rule amendments affecting venue in medical malpractice actions.

An amendatory order, to which Justices Ronald Castille and Thomas Saylor took exception, dictates that the rule changes will cover medical professional liability actions filed on or after Jan. 1, 2002.

Prior to the new order, medical malpractice defendants litigating in Philadelphia but eyeing the surrounding counties as more favorable trial locations had filed more than 700 requests for transfer, finding room to maneuver in the changed language of Pa. R.C.P. 1006(a.1) and the high court's accompanying order, coupled with an order effectuating a new certificate of merit rule.

Philadelphia Court of Common Pleas civil division Supervising Judge William Manfredi said the 700-plus defense petitions arguing for retroactive application of Amended Rule 1006(a.1) implicated more than 400 cases.

The amended rule provides in relevant part 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." Until this week, the only instruction from the state Supreme Court as to which cases would be subject to the rule came from the Jan. 27 order promulgating it.

That order specified that Rule 1006(a.1), along with additional venue changes, would be "effective immediately." On the other hand, a certificate of merit rule - essentially requiring attorneys filing professional liability claims to verify that an appropriate licensed professional has identified a deviation from the applicable standard of care - was enacted by a Jan. 27 order stating that the rule would apply to "actions commenced on or after the effective date of [the] Order."

Members of the plaintiffs' bar thus found themselves butting heads with defense attorneys over whether the venue changes applied prospectively or retroactively to pending cases.
While area attorneys told The Legal they are pleased to have a clarification from the high court, two members of that bench disagreed with the final say on which cases would be affected by the amendments.

The last paragraph of the amendatory order states that Castille and Saylor "would apply the amendments to the Pennsylvania Rules of Civil Procedure . . . prospectively for all actions filed on or after the effective date of Act. No. 127 of 2002.

Act No. 127, the explanatory comment to the venue rules states, amended the Judicial Code by adding new Section 5101.1 providing for venue in medical professional liability actions. Section 5101.1(b) contains language similar to that of Rule 1006(a.1), the comment indicates.

The effective date specified in that act was December 2002.

Litvin Blumberg Matusow & Young partner Michael Panichelli said he would have preferred the court's order to adhere to Castille and Saylor's position, but nonetheless is pleased that the justices have clarified their previous order and provided some certainty to litigants.

Panichelli expressed surprise at the high court's decision to extend the venue amendments back to Jan. 1, 2002, a move that Thomas Kline of Kline & Specter characterized as splitting the baby.

Since no opinion accompanied the amendatory order, Kline said he could only speculate as to the rationale behind the Jan. 1, 2002, date. The litigator said he thought cases filed in Philadelphia County prior to the Jan. 1 cutoff would have progressed too far to permit transfer from Philadelphia without disrupting the orderly administration of justice, and that the specified date reflected this concern.

Montgomery County Bar Association President Marc Steinberg of Rubin Glickman & Steinberg in Lansdale said the amendatory order couldn't be described as a "bad thing" from a suburban perspective.

The attorney said Montgomery County lawyers are certainly equipped to handle medical malpractice cases that might otherwise have landed in Philadelphia and indeed will do a fine job on any they receive. He described the movement of cases from Philadelphia to the outlying counties as inevitable.

Unlike plaintiffs' lawyers, defense attorney Donald Ladd, a litigation partner at White & Williams, said his firm was hoping to see retroactive application of the venue rules to all pending cases. According to Ladd, such activity would have significantly impacted Pennsylvania's medical malpractice crisis this year.

But Ladd said he is still pleased to see a significant number of cases being transferred from Philadelphia to suburban courts.

As to the split in the high court's bench, Ladd said it is clear the court was struggling with making a procedural rule in a political climate.

Montgomery County defendants' attorney George Knoell of Kane Pugh Knoell & Driscoll said the clarification would ultimately save the Philadelphia Court of Common Pleas a great deal of work. Additionally, he said he's glad medical malpractice cases that have been funneled into Philadelphia for the past 10 years will now return to the counties in which treatments are taking place.

According to Goldfein & Hosmer partner E. Chandler Hosmer, approximately 25 percent to 40 percent of his firm's medical malpractice cases will now wind up in the suburbs. He described his mood as borderline ecstatic at the court's decision.
The only thing counterbalancing his enthusiasm, Hosmer said, is the likelihood of delay in bringing cases to trial.

But Judges R. Barry McAndrews, Howard Riley and S. Gerald Corso, who serve as Bucks, Chester and Montgomery counties' president judges respectively, all said they do not anticipate docket problems due to an influx of cases from Philadelphia County. In fact, Corso pointed out that the amendment will actually reduce the number of cases his court had been expecting since the venue changes could have applied retroactively to all pending cases.