2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Secondly, as noted above, the Pennsylvania Rules of Civil Procedure have recently beenrevised to conform to the General Assembly’s changes set forth in MCARE. Rule 1006, relatingto change of venue, provides that a medical malpractice action may be brought against a healthcare provider only in a county in which the cause of action arose. See Pa. R. Civ. P. 1006(a.1).Moreover, the revisions provide that if an action to enforce a joint or joint and several liabilityclaim against two or more defendants includes one or more medical malpractice claims, theaction must be brought in any county in which venue may properly be laid against any defendantunder subdivision (a.1). See Pa. R. Civ. P. 1006(c)(2). Further, Section (f)(2) of the rulestipulates that if one or more of the causes of action stated against the same defendant is amedical malpractice claim, the action must be brought in a county required by subdivision (a.1).See Pa. R. Civ. P. 1006(f)(2). The revisions to Rule 1006 as applied to individual defendants areincorporated into the following other Rules of Civil Procedure: 2130 (Partnerships as Parties);2156 (Unincorporated Associates as Parties); 2179 (Corporations and Similar Entities as Parties).See Pa. R. Civ. P. 2130, 2156, 2179. Significantly, the Commonwealth Court, in holding Section5101.1 unconstitutional, made no ruling concerning the constitutionality of the amended Pa. R.Civ. P. 1006. See North-Central Pennsylvania Trial Lawyer’s Ass’n v. Weaver, 827 A.2d 550(Pa. Commw. Ct. 2003) (en banc). See also Forrester v. Hanson, 901 A.2d 548, 552 n.3 (Pa.Super. 2006).By an Amendatory Order dated March 3, 2003, the Pennsylvania Supreme Court ruledthat Pa. R. Civ. P. 1006 “shall apply to medical professional liability actions filed on or afterJanuary 1, 2002 and not to such action filed prior to that date.”(i)RemittiturWhere a health care provider challenges a verdict on the basis of its excessiveness,MCARE establishes a standard for the court’s evaluation of the challenge. 40 P.S. § 1303.515.The trial court shall consider whether the health care provider’s satisfaction of the verdict willimpact the availability of the community’s access to medical care. 40 P.S. § 1303.515(b). If it isdetermined that the verdict results in a limitation of the community’s availability to healthcare,then the trial court may reduce award accordingly. Id. If the trial court has not adequatelyconsidered the impact of paying the verdict upon availability and access to health care in thecommunity in denying remittitur, an appellate court can find that the trial court abused itsdiscretion. 40 P.S. § 1303.515(c). Also, a trial court or appellate court may limit or reduce theamount of the security that the defendant health care provider must post to prevent execution ifthe court finds that requiring a bond in excess of the insurance policy limits would effectivelydeny defendant’s right to an appeal. 40 P.S. § 1303.515(d).(j)Ostensible AgencyMCARE modifies Pennsylvania’s doctrine of ostensible agency for causes of actionarising after the Act’s effective date. Under pre-MCARE case law, plaintiffs were required tosatisfy two factors before they could establish a cause of action against a healthcare institutionunder the ostensible agency theory, even where the alleged offending physician was not amember of the staff of the healthcare institution. First, plaintiffs must show that they looked tothe health care institution as opposed to the individual physician, and that the institution “heldout” the physician as its employee. Under MCARE, however, a healthcare provider can be held103