Rule proposed governing remittitur relief under MCARE act

October 20, 2003
By Melissa Nann

A newly proposed rule for state civil procedure details how and when a defendant health care provider can seek remittitur relief on the grounds that its paying a jury verdict would reduce the availability of health care to a community.

The proposed rule, published last week by the state Civil Procedural Rules Committee, would implement a provision of the Medical Care Availability and Reduction of Error Act that took effect last year.

The rule would require defendants seeking remittitur relief to file such a motion within 30 days of a verdict and to explain, “with specificity,” the basis for the claim that “paying the verdict will impact upon availability of and access to health care in the community.”

Courts would have to make decisions regarding how to dispose of such motions within 120 days of their filing.

Area lawyers say that the rule would apply in only a small number of cases.

Mark W. Tanner, a medical malpractice attorney, predicted that Philadelphia would be the last place in the state that such a motion for remittitur relief would be successful.

“There’s an abundance of health care available here,” said Tanner of Feldman Shepherd Wohlgelernter & Tanner. For area health care to be affected, Tanner said, “it would have to be a very, very large verdict because hospitals in Philadelphia do a tremendous amount of business.”

Tanner surmised that, instead of large cities, the legislation was aimed at providing a method of relief for rural hospitals where doctors and care are less prevalent.

Mark Phenicie, a lobbyist for the Pennsylvania Trial Lawyers Association in Harrisburg, also said the law was intended to protect smaller community hospitals.

But Phenicie doesn’t see a hospital going out of business over one jury verdict, he said. Some providers may exceed their liability coverage if hit with a particularly massive verdict, but “those cases are slim to none,” he said.

However, counsel for insurance carriers and hospitals said health care providers can and do run into problems when insurance coverage runs out. Then they’re forced to pay the balance of the unpaid damages themselves, lawyers said.

Don Ladd, a defense attorney at White & Williams, said he knows of situations where hospitals have run out of their liability coverage and, as a result, the quality of their health care suffers.

It’s a problem, Ladd said, and the option for remittitur relief is a new method of relief.

“I’m not saying that people should not be compensated,” Ladd said. “But we’re spending millions of dollars compensating people who cannot possibly use all of this money. Those millions are being distracted from providing health care to people who need it.”

For example, the Medical Center of Beaver County told a western Pennsylvania judge this summer that the hospital would have to close its obstetrics and gynecological departments if the court did not reduce or throw out a $4.8 million malpractice verdict, according to officials at the Hospital and Health System Association. Some plaintiff attorneys view remittitur relief as an alternative to limits on non-economic damages, said James Redmond, senior vice president for the hospital associations’s legislative services section.

But Redmond said they’re wrong.

“It’s helpful, but only in a very limited number of cases,” he said. “Therefore, although it may be helpful to one or two hospitals in specific cases, it will have very little impact on overall rising medical liability costs.”

Alan Feldman, former president of the Philadelphia Trial Lawyers Association, was concerned that the committee did not specify a standard by which courts could judge whether and when a verdict would impact a community’s access to health care.

“What’s the point of having a jury decide a case if a reasonable award is issued and, nevertheless, it’s subject to a reduction based on a foggy notion of whether health care has been impacted?” Feldman said.

The Civil Rules Committee also proposed two other rules last week. The first would set procedure for the late filing of pleadings, and the second would establish what is required of parties seeking the joinder of additional defendants.